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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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u 


THE 

CR^IL   CODE 


STATE  OF  CALIFORNIA, 


A8    ENACTED  IN   1S72,   AMENDED  AT   SUBSEQUENT   SES- 
SIONS,   AND    ADAPTED    TO    THE    CONSTITUTION 
OF  1S79;  AND  AN  APPENDIX  OF  GENEEAL 
LAWS   UPON   THE    SUBJECTS    EM- 
BRACED IN  THE  CODE. 


COMPILED  BT 

JAMES  H.  DEERING. 


SAN    FRANCISCO: 
BANCROFT-WHITNEY  COMPANY. 

1897. 


Copyright,  1897, 
By  BANCROFT-WHITNEY  COMPANY. 


<5  /pT      OP- 


J^,^^/     AP^^S 


Bak  Francisco: 
The  Filmxr-Rollins  Electrotype  Cojipany, 

TYPOGRAPHERS  AND  STEREOTYPERS. 


CONTENTS. 


Division  First. 

sections 
PART  I.    PERSONS    25-42 

II.     PERSONAL  RIGHTS 43-50 

III.    PERSONAL  RELATIONS 55-276 

Title  I.    Marriage    55-181 

Chapter  I.    Tlie  contract  of  marriage.  55-80 

II.    Divorce 82-148 

HI.    Husband  and  wife 155-181 

Title  II.    Parent  and  Cliild   193-230 

Chapter  I.    By  birth  193-211 

II.    By  adoption 221-230 

Title  HI.    Guardian  and  Ward 236-258 

IV.    Master  and  Servant 264-270 

PART  IV.    CORPORATIONS 283-643 

Title  I.    General  Provisions  Applicable  to 

all  Corporations 283-403 

Chapter  I.    Formation  of  corporations  283-320 

II.    Corporate  stoclx   322-349 

HI.    Corporate  powers 354-393 

IV.    Extension  and  dissolution 

of  corporations   399-403 

Title  11.    Insurance  Corporations  414-448 

Chapter  I.    General  provisions 414-420 

II.    Fire     and    marine    insur- 
ance corporations 424-431 

III.  Mutual  life,  health,  and 
accident  insurance  cor- 
porations   437-452 


I 


IV.  CONTENTS. 

sections 

Title  III.    Railroad  Corporations  454-491 

Chapter  I.    Officers      and      corporate 

stocli    454-459 

II.    Enumeration  of  powers  . .  465-478 

III.    Business,  how  conducted  .  479-491 

Title  IV.    Street  Railroad  Corporations.  497-511 

V.    Wagon  Road  Corporations...  512-523 

VI.    Bridge,  Ferry  Wharf,  Chute, 

and  Pier  Corporations 528-531 

VII.    Telegraph  Corporations   536-541 

VIII.    Water    and    Canal    Corpora- 
tions      548-552 

IX.    Homestead  Corporations  ....  557-566 
X.    Savings  and    Loan    Corpora- 
tions    571-579 

XI.    Mining  Corporations 584-587 

XII.    Religious,  Social,  and  Benev- 
olent Corporations 593-602 

XIII.  Cemetery  Corporations 608-614 

XIV.  Agricultural     Fair     Corpora- 

tions      620-622 

XV.    Gas  Corporations 628-632 

XVI.    Land  and  Building  Corpora- 
tions   639-648 

XVII.    Colleges    and    Seminaries    of 

Learning    649-651 

XVIII.  Consolidation  of  Colleges  and 
Institutions  of  Higher  Edu- 
cation    652-653 


Division    Second. 

PART  I.    PROPERTY  IN  GENERAL  .  .  654-749 

Title  I.    Nature  of  Property   654-663 

II.    Ownership  669-742 

Chapter  I.    Owners    669-672 

II.    Modifications     of     owner- 
ship    678-726 


CONTENTS,  V. 

sections 

Chapter  III.    Rights  of  owners 732-733 

IV.    Termination  of  ownership.  739-742 
Title  III.    General  Definitions 748-749 

PART    II.    REAL       OR       IMMOVABLE 

PROPERTY   755-940 

Title  I.    General  Provisions  755 

II.    Estates  in  Real  Property 761-811 

Chapter  I.    Estates  in  general 761-781 

II.    Termination  of  Estates...  789-79a 

III.    Servitudes  801-811 

Title  III.    Rights     and     Obligations     of 

Owners    818-841 

Chapter  I.    Rights  of  owners  818-834 

II.    Obligations  of  owners  ....  840-841 

Title  IV.    Uses  and  Trusts   847-871 

V.    Powers  (repealed). 

PART  III.    PERSONAL   OR  MOVABLE 

PROPERTY    946-994 

Title  I.    Personal  Property  in  General.  946-947 
II.    Particular    Kinds    of    Personal 

Property 953-994 

Chapter  I.    Things  in  action   953-954 

II.    Shipping  960-973 

III.  Products  of  the  mind 980-985 

IV.  Other    kinds    of    personal 

property   991-994 

PART    IV.    ACQUISITION    OF    PROP- 
ERTY       1000-1422 

Title  I.    Modes  in  which  Property  may 

be  Acquired  1000-1001 

II.    Occupancy   1006-1007 

III.    Accession    1013-1033 

Chapter  I.    To  real  property   1013-1019 

II.    To  personal  property   .  .   1025-1033 

Title  IV.    Transfer    1039-1231 

Chapter  I.    Transfer  in  general 1039-1085 


VI. 


CONTENTS. 


sections 
Cliapter  II.    Transfer  of    real    prop. 

erty    1091-1115 

III.  Transfer      of      personal 

property  1135-1153 

IV.  Recording'    transfers    of 

real  property   1158-1217 

V.    Unlawful  transfers   1227-1231 

Title  V.    Homesteads   12.37-12G9 

Chapter  I.    General  provisions   1237-1261 

II.    Homestead  of  the  head 

of  a  family 1262-1265 

III.    Homestead     of     other 

persons 1206-1269 

Title  VI.    Wills 1270-1377 

Chapter  I.    Execution    and    revoca- 
tion of  wills 1270-1313 

II.    Interpretation  of  wills. .  1317-1351 
III.    General  provisions  relat- 
ing to  wills   1357-1377 

Title  VII.    Succession 1383-1408 

VIII.    Water  Iliglits   1410-1422 

IX.    Hydraulic  mining 1424-1425 


Division  Third. 

PAllT  I.    OBLIGATIONS       IN      GEN- 
ERAL     1427-1543 

Title  I.    Definition  of  Obligations   . .  .   1427-1428 
II.    Interpretation  of  Obligations.   1429-1451 
Chapter  I.    General  Rules  of   Inter- 
pretation     1429 

II.    Joint  or  several  obliga- 
tions      1430-1432 

HI.    Conditional   obligations.   1434-1442 

IV.    Alternative  obligations..   1448-1451 

Title  HI.    Transfer  of  Obligations  .  . .   1457-1467 

IV.    Extinction  of  Obligations.  .   1473-1543 


CONTENTS.  VII. 

sections 

Chapter  I.    Performance   1473-1479 

II.    Offer  of  performance. .,   1485-1505 

III.  Prevention    of    perform- 

ance or  offer 1511-1515 

IV.  Accord  and  satisfaction.   1521-1524 
V.    Novation    1.5.30-1533 

YI.    Release   1.541-1543 

PART  II.    CONTRACTS 1549-1701 

Title  I.    Nature  of  a  Contract 1549-1(315 

Chapter  I.    Definition   1.549-1550 

II.  Parties  1556-1559 

III.  Consent    1565-1589 

IV.  Object    1595-1599 

V.    Consideration 1605-1615 

Title  II.    Manner    of     creating    Con- 
tracts      1619-1629 

III.  Interpretation  of  Contracts.   1635-1661 

IV.  Unlawful  Contracts    1667-1676 

V.    Extinction  of  Contracts    . .  .  1682-1701 

Chapter  I.    Contracts,      how     extin- 
guished    1682 

II.    Rescission   1688-1691 

III.    Alteration      and       can- 
cellation     1697-1701 

PART  III.    OBLIGATIONS  IMPOSED 

BY  LAW 1708-1715 

PART    IV.    OBLIGATIONS    ARISING 
FROM      PARTICULAR 

TRANSACTIONS    1721-.3268 

Title  I.    Sale 1721-1798 

Chapter  I.    General  provisions 1721-1741 

II.    Rights    and    obligations 

of  the  seller    1748-1778 

III.  Rights    and    obligations 

of  the  buyer    1784-1786 

IV.  Sale  bv  auction 1792-1798 


VIII.  CONTENTS. 

sections 

Title  II.    Exchange 1804-1807 

III.    Deposit 1813-1878 

Chapter  I.    Deposit  in  general 1813-1827 

II.  Deposit  for  keeping 1833-1872 

III.    Deposit  for  exchange...  1878 

Title   IV.    Loan    1844-1920 

Chapter  I.  Loan  for  use  1844-1896 

II.    Loan  for  exchange 1902-1906 

III.    Loan  of  money 1912-1920 

Title  V.    Hiring  1925-1959 

Chapter  I.    Hiring  in  general 1925-1935 

II.    Hiring  of  real  property.  1941-1950 

III.  Hiring  of  personal  prop- 

erty    1955-1959 

Title  VI.    Service 1965-2079 

Chapter  I.    Service     with     employ- 
ment    1965-2003 

II.  Particular  employments.  2009-2072 
HI.    Service  without  employ- 
ment   2078-2079 

Title  VII.    Carriage    2085-2209 

Chapter  I.    Carriage  in  general 2085-2090 

II.    Carriage  of  persons 2096-2104 

III.  Carriage  of  property. . .  .  2110-2155 

IV.  Carriage  of  messages  . .  2161-2162 
V.    Common  carriers   2168-2209 

Title  VIII.    Trust   2215-2289 

Chapter  I.    Trusts  in  general 2215-2244 

II.    Trusts  for  the  benefit  of 

third  persons  2250-2289 

Title  IX.    Agency  2295-2389 

Chapter  I.    Agency  in  general 2295-2356 

Particular  agencies 2362-2389 

Title  X.    Partnership   2395-2520 

Chapter  I.    Partnership  in  general. .  2395-2418 
II.    General  partnership   . . .  2224-2471 

III.  Special  partnership 2477-2510 

IV.  Mining  partnership 2511-2520 


CONTENTS.  IX. 

sections 

Title  XI.    Insurance   2527-2766 

Chapter  I.    Insurance  in  general   .  .  2527-2649 
II.    Marine  insurance 2655-2746 

III.  Fire  insurance    2752-2756 

IV.  Life    and    health    insur- 
ance  2762-2766 

Title  XII.    Indemnity 2272-2781 

XIII.    Guaranty 2787-2866 

Chapter  I.    Guaranty  in  general  .  . .   2787-2825 

II.    Suretyship   2831-2866 

Title  XIV.    Lien    2872-3080 

Chapter  I.    Liens  in  general 2872-2913 

II.    Mortgage 2920-2971 

III.    Pledge 2986-3011 

IV.    Bottomry 3017-3029 

V.    Respondentia 3036-3040 

IV.    Other  liens 3046-3060 

VII.    Stoppage  in  transit 3076-3080 

Title  XV.    Negotiable    Instruments. ..  3086-3262 
Chapter  I.    Negotiable     instruments 

in  general 3086-3165 

II.    Bills  of  exchange 3171-3238 

III.  Promissory  notes 3244-3248 

IV.  Checl^s 3254-3255 

V.    Banlv    notes   and  certifi- 
cates of  deposit 3261-3262 

Title  XVI.    General  Provisions 3268 


Division   Fourth. 

PART  I.    RELIEF 3274-3423 

Title  I.    Relief  in  general 3274-3275 

II.    Compensatory   Relief 3281-3360 

Chapter  I.    Damages  in  general.  . . .  3281-3294 

II.    Measure  of  damages 3300-3360 

Title  III.  Specific  and  Preventive  Re- 
lief    3366-3428 


X.  CONTENTS. 

sections 

Chapter  I.    General  principles 33013-33G9 

II.    Specific  relief 3375-3414 

III.    Preventive  relief 3420-3423 

PART  II.  SPECIAL  RELATIONS  OF 
DEBTOR  AND  CRED- 
ITOR     3429-3473 

Title  I.    General  Principles 3429-3433 

II.    Fraudulent    Instruments   and 

Transfers 3439-3442 

III.    Assignments    for  the   Benefit 

of  Creditors 3449-3473 

PART  III.    NUISANCE 3479-3503 

Title  I.    General  Principles 3479-3484 

II.    Public  Nuisances 3490-3495 

III.    Private  Nuisances 3501-3503 

PART  IV.  MAXIMS  OF  JURISPRU- 
DENCE     3509-3543 


CONTENTS. 


XI. 


SUMMARY    OF    CONTENTS. 


sections 
PRELIMINARY  PROVISIONS 2-     21 

DIVISION  I.  RELATING  TO  PER- 
SONS    25-648 

Part  I.    Persons 25-    42 

11.    Personal  Rights 43-     50 

III.  Personal  Relations 55-  276 

IV.  Corporations 283-  648 

DIVISION  II.  RELATING  TO  PROP- 
ERTY      654-1422 

Part  I.    Property  in  General 654-  749 

II.    Real  Property   755-  940 

III.  Personal  Property 953-  994 

IV.  Acquisition  of  Property 1000-1422 

DIVISION  IIL  RELATING  TO  OBLI- 
GATIONS      1427-3268 

Part  I.    Obligations  in  General 1427-1543 

II.    Contraeis 1549-1701 

III.  Obligations       Imposed      by 

Law 1708-1715 

IV.  Arising      from      Particular 

Transactions 1721-3268 

DIVISION  IV.  GENERAL  PROVI- 
SIONS RELATING 
TO  THE  PRECED- 
ING PROVISIONS..   3274-3543 

Part  I.    Relief 3274-3423 

II.    Relations     of     Debtor     and 

Creditor 3429-3473 

III.  Nuisance   3479-3503 

IV.  Maxims  of  Jurisprudence.. .  3509-3543 


k 


THE    CIVIL    CODE 


OF  THE 


STATE  OF  CALIFORNIA. 


IN  FOUR  DIVISIONS. 


THE  CIVIL  CODE 

OF  THE 

STATE   OF   CALIFORNIA. 


AN  ACT  TO  ESTABLISH  A  CIVIL  CODE. 

[Approved  March  21st,  1872.] 


The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

TITLE  OF  THE  ACT. 

§  1.  This  act  shall  be  known  as  The  Civil  Code 
of  the  State  of  California,  and  is  in  Four  Divi- 
sions, as  follows:— 

I.    The  First  relating  to  Persons. 
II.    The  Second  to  Property. 
III.    The  Third  to  Obligations. 
I\'.    The  Fourth  contains  General  Provisions  re- 
lating to  the  three  Preceding  Divisions. 

Act  how  cited:  See  sec.  21,  post. 


§§  2-4  PRELIMINARY    PROVISIONS. 


PRELIMINARY   PROVISIONS, 

§    2.  When  this  Code  takes  effect. 

§    3.  Not  Retroactive. 

§    4.  Rules   of   construction. 

§    5.  Provisions  similar  to  existing  laws,  how  construed. 

§    6.  Actions,  etc.,   not  affected. 

§    7.  Holidays. 

§    8.  Same. 

§    9.  Business  days. 

§  10.  Computation  of  time. 

§  11.  Certain  acts  not  to  be  done  on  holidays. 

§  12.  Joint  authority  construed. 

§  13.  Words  and  phrases,  how  construed. 

§  14.  Certain  terms  defined. 

§  15.  Good  faith,  what  constitutes,     (Repealed.) 

§  16.  Degrees  of  care  and  diligence.     (Repealed.) 

§  17.  Degrees    of   negligence.     (Repealed.) 

§  18.  Notice,  actual  and  constructive. 

§  19.  Constructive  notice,  when  deemed. 

§  20.  Effect  of  repeal. 

§  21.  This  Act,  how  cited. 

§  2.  This  Code  takes  effect  at  twelve  o'clock 
noon  on  the  first  day  of  January,  eighteen  hun- 
dred and  seventy-three. 

Effect  of  codes  generally:  See  sees.  4478  et  seq. 
of  the  Polit.  Code. 

Similar  provision  in  other  Codes  of  California: 
See  sec.  2  thereof. 

Effect  of  this  Code:  See  subsequent  sees.  3-19, 
inclusive,  and  see  those  sections  as  found  in  the 
Polit.  Code. 

Publication  of  the  Codes:  See  sec.  4494  of  the 
Polit.  Code. 

§  3.  No  part  of  it  is  retroactive,  unless  expressly 
so  declared. 

§  4.  The  rule  of  the  common  law,  that  statutes 
in  derogation  thereof  are  to  be  strictly  construed, 
has  no  application  to  this  Code.  The  Code  estab- 
lishes the  law  of  this  State  respecting  the  subjects 


5  PRELIMINARY  PROVISIONS.  §§  5,  6 

to  which  it  relates,  and  its  provisions  are  to  be  lib- 
erally construed  with  a  view  to  effect  its  objects 
and  to  promote  justice. 

Effect  of  Codes  generally:  See  sees.  4478  et  seq. 
of  the  Polit.  Code. 

§  5.  The  provisions  of  this  Code,  so  far  as  they 
are  substantially  the  same  as  existing  statutes  or 
the  common  law,  must  be  construed  as  continua- 
tions thereof,  and  not  as  new  enactments. 

§  6.  No  action  or  proceeding  commenced  before 
this  Code  takes  effect,  and  no  right  accrued,  is  af- 
fected by  its  provisions. 

Effect  of  Codes:  See  Code  Civ.  Proc,  sec.  8; 
Polit.  Code.  sec.  8. 

The  amendatory  act  of  March  30,  1874,  Amend- 
ments 1S73-4,  181-269,  from  which  most  of  the 
amendments  and  new  sections  of  the  Civil  Code 
are  taken,  contained  three  additional  sections,  re- 
lating to  its  effect,  as  follows: 

The  amendatory  act  of  1874  contained  the  fol- 
lowing provision: 

Sec.  286.  All  provisions  of  law  inconsistent  with 
the  provisions  of  this  act  are  hereby  repealed,  but 
no  rights  acquired  or  proceedings  taken  under  the 
provisions  repealed  shall  be  impaired  or  in  any 
manner  affected  by  this  repeal;  and  whenever  a 
limitation  or  period  of  time  is  prescribed  by  such 
repealed  provisions  for  acquiring  a  right  or  bar- 
ring a  remedy,  or  for  any  other  purpose,  has  be- 
gun to  run  before  this  act  takes  effect,  and  the 
same  or  any  other  limitation  is  prescribed  by  this 
act,  the  time  of  limitation  which  shall  have  run 
when  this  act  takes  effect  shall  be  deemed  part  of 
the  time  prescribed  by  this  act. 

Effect  of  amendatory  act  as  to  other  acts  passed 
at  session  of  1871-2  is  shown  by  the  following  pro- 
vision: 

Sec.  287.    With  relation  to  the  laws  passed  at 


§§  7-9  PRELIMINARY  PROVISIONS.  6 

the  present  session  of  the  legislature,  this  act  must 
be  construed  as  though  it  had  been  passed  at  the 
first  day  of  the  present  session;  if  the  provisions 
of  any  law  passed  at  the  present  session  of  the 
legislature  contravene  or  are  inconsistent  with  the 
provisions  of  this  act,  the  provisions  of  such  law 
must  prevail. 

Sec.  288.  This  act  shall  tal^e  effect  on  the  first 
day  of  July,  one  thousand  eight  hundred  and  sev- 
enty-four. 

§  7.  Holidays,  within  the  meaning  of  this  Code, 
are  every  Sunday,  the  first  day  of  January,  the 
twenty-second  day  of  February,  the  thirtieth  day 
of  May,  the  fourth  day  of  July,  the  ninth  day  of 
September,  the  first  Monday  of  September,  the 
twenty-fifth  day  of  December,  every  day  on 
which  an  election  is  held  throughout  the  State, 
and  every  day  appointed  by  the  President  of  the 
United  States,  or  by  the  Governor  of  the  State, 
for  a  public  fast,  thanksgiving,  or  holiday.  If 
the  first  day  of  January,  the  twenty-second  day 
of  February,  the  thirtieth  day  of  May,  the  fourth 
day  of  July,  the  ninth  day  of  September,  or  the 
twenty-fifth  day  of  December  shall  fall  upon  a 
Sunday,  the  Monday  following  is  a  holiday.  [Ap- 
proved February  2'6,  1897,  ch.  XV'III.] 

This  section  was  also  amended  in  1893;  Stats. 
1893.  p.  186. 
Holidays,  when  counted:  See  sec.  11. 

§  8.  If  the  first  of  January,  the  twenty-second 
of  February,  the  fourth  of  July,  or  the  twenty- 
fifth  of  December  falls  upon  a  Sunday,  the  Mon- 
day following  is  a  holiday. 

§  9.  All  other  days  than  those  mentioned  in  the 
last  two  sections  are  to  be  deemed  business  days 
for  all  purposes. 

See  sec.  11. 


7  PRELIMINARY  PROVISIONS.  §§  10-14 

§  10.  The  time  in  which  any  act  provided  by 
iaw  is  to  be  done  Is  computed  by  excluding  the 
first  day  and  including  the  last,  unless  the  last  day 
is  a  holiday,  and  then  it  is  also  excluded. 

Time,  how  computed,  and  year,  weeli,  and  day 
defined:  See  sees.  3255  et  seq.  of  Polit.  Code. 

The  Supreme  Court  is  always  open  for  the  trans- 
action of  business:  Sec.  134,  Code  Civ.  Proc. 

§  11.  Whenever  any  act  of  a  secular  nature, 
other  than  a  work  of  necessity  or  mercy,  is  ap- 
pointed by  law  or  contract  to  be  performed  upon 
a  particular  day,  which  day  falls  upon  a  holiday, 
it  may  be  performed  upon  the  next  business  day 
with  the  same  effect  as  if  it  had  been  performed 
upon  the  day  appointed. 

Compare  with  sec.  9,  supra. 

§  12.  Words  giving  a  joint  authority  to  three 
or  more  public  officers  or  other  persons  are  con- 
strued as  giving  such  authority  to  a  majority  of 
them,  unless  it  is  otherwise  expressed  in  the  act 
giving  the  authority. 

§  13.  Words  and  phrases  are  construed  accord- 
ing to  the  context  and  the  approved  usage  of  the 
language;  but  technical  words  and  phrases,  and 
such  others  as  may  have  acquired  a  peculiar  and 
appropriate  meaning  in  law,  or  are  defined  in  the 
succeeding  section,  are  to  be  construed  according 
to  such  peculiar  and  appropriate  meaning  or  defi- 
nition. 

Words  and  phrases,  how  construed.— The  above 
is  the  general  rule  with  regard  to  the  construction 
of  words,  whether  in  contracts,  statutes,  or  con- 
stitutions. The  meaning  to  be  given  to  words  in 
contracts  is  provided  for  in  this  Code,  sees.  1644, 
1645,  and  in  the  Code  of  Civil  Procedure,  sec.  1861. 

§  14.    Words  used  in  this  Code  in  the  present 


§§  15-18  PRELIMINARY   PROVISIONS.  8 

tense  include  the  future  as  well  as  the  present; 
words  used  in  the  masculine  gender  include  the 
feminine  and  neuter;  the  singular  number  includes 
the  plural  and  the  plural  the  singular;  the  word 
person  includes  a  corporation  as  well  as  a  natural 
person;  writing  includes  printing;  oath  includes 
affirmation  or  declaration;  and  every  mode  of  oral 
statement  under  oath  or  affirmation  is  embraced 
by  the  term  "testify,"  and  every  written  one  in 
the  term  "depose";  signature  or  subscription  in- 
cludes mark,  when  the  person  cannot  write,  his 
name  being  written  near  it,  and  written  by  a 
person  who  writes  his  own  name  as  a  witness. 
The  following  words  also  have  in  this  Code  the 
signification  attached  to  them  in  this  section,  un- 
less otherwise  apparent  from  the  context: 

1.  The  word  "property"  includes  property  real 
and  personal; 

2.  The  words  "real  property"  are  coextensive 
with  lands,  tenements,  and  hereditaments; 

3.  The  words  "personal  property"  include 
money,  goods,  chattels,  things  in  action,  and  evi- 
dences of  debt; 

4.  The  word  "month"  means  a  calendar  month, 
unless  otherwise  expressed;  and, 

5.  The  word  "will"  includes  codicils.  [Amend- 
ment approved  March  30,  1874;  Amendments 
1ST3-4,  181.    In  effect  July  1,  1876.] 

Words  used  in  boundaries  are  defined  in  sees. 
3903  to  3907  of  the  Polit.  Code. 

§§  15,  16,  17.  [Repealed  March  30,  1874; 
Amendments  1873-4,  182.    In  effect  July  1,  1874.] 

§  18.    Notice  is: 

1.  Actual— which  consists  in  express  informa- 
tion of  a  fact;  or. 

2.  Constructive— which  is  imputed  by  law. 


9  PRELIMINARY   PROVISIONS.  §§  19-21 

§  19.  Every  person  who  has  actual  notice  of 
circumstances  sufficient  to  put  a  prudent  man  up- 
on inquiry  as  to  a  particular  fact,  has  constructive 
notice  of  the  fact  itself  in  all  cases  in  which,  by 
prosecuting  such  inquiry,  he  might  have  learned 
such  fact.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  182.  In  effect  July, 
1874.] 

Constructive  notice — Recording  instruments:  See, 
post,  sec.  1213. 

§  20.  No  statute,  law,  or  rule  is  continued  in 
force  because  it  is  consistent  with  the  provisions 
of  this  Code  on  the  same  subject;  but  in  all  cases 
provided  for  by  this  Code,  all  statutes,  laws,  and 
rules  heretofore  in  force  in  this  State,  whether 
consistent  or  not  with  the  provisions  of  this  Code, 
unless  expressly  continued  in  force  by  it,  are  re- 
pealed or  abrogated. 

This  repeal  or  abrogation  does  not  revive  any 
former  law  heretofore  repealed,  nor  does  it  affect 
any  right  already  existing  or  accrued,  or  any  ac- 
tion or  proceeding  already  fallen,  except  as  in  this 
Code  provided. 

Statutes  continued  in  force:  See  sec.  19  of  the 
Polit.  Code  and  Penal  Code,  and  Statutes  in  Force. 

Vested  rights:  See  sec.  6. 

§  21.  This  act,  whenever  cited,  enumerated,  re- 
ferred to,  or  amended,  may  be  designated  simply 
as  "The  Civil  Code,"  adding,  when  necessary,  the 
number  of  the  section. 

Title  of  the  act:  See  ante,  sec.  1. 


DIVISION   FIRST. 


Part  I.  Persons,  §§  25-42. 

II.  Personal  Riohts,  §§  43-50. 

III.  Personal  Relations,  §§  55-276. 

IV.  Corporations,  §§  283-648. 


J 


PART  I. 


PERSONS. 

§  25.     Minors,  who  are. 

§  23.    Periods   of   minority,   how  calculated. 

§  27.    Adults,   who  are. 

§  28.     Status  of  minors,   how   changed.     (Repealed.) 

§  29.    Unborn  child. 

§  30.  Persons  made  adults  by  other  states,  considered  as 
such  in  this  state,  when  domiciled  herein.  (Re- 
pealed.) 

§  31.  Jlinors  by  the  laws  of  other  State  or  country,  how 
considered   in   this   State.     (Repealed.) 

§  32.     Custody  of  minors. 

§  33.     Minors  cannot  give  a  delegation  of  power. 

§  34.     Contracts   of   minors   made;    disaffirmed, 

§  35.    When   minor  may   disaffirm. 

§  36.     Cannot    disaffirm   contract   for   necessaries. 

§  37.     Nor   certain    obligations. 

§  38.     Contracts   of   persons   without   understanding. 

§  39.     Contracts   of   other   insane   persons. 

§  40.  Powers  of  persons  whose  incapacity  has  been  ad- 
judged. 

§  41.  Minors  liable  for  wrongs,  but  not  liable  for  exemp- 
lary  damages. 

§  42.     Minors  may  enforce  their  rights. 

§  25.    Minors  are: 

1.  Males  under  t\renty-one  years  of  age; 

2.  Females  under  eighteen  years  of  age. 

§  26.  The  periods  specified  in  the  preceding 
section  must  be  calculated  from  the  first  minute 
of  the  day  on  which  persons  are  born  to  the  same 
minute  of  the  corresponding  day  completing  the 
period  of  minority. 

§  27.    All  other  persons  are  adults. 

§  28.   [Repealed  March  30,   1874;    Amendments 
1873-4,  182.    In  effect  July  1,  1874.1 
Civ.  Code— 2 


§§   29-35  PERSONS.  14 

§  29.  A  child  couceived,  but  not  yet  born,  is 
to  be  deemed  an  existing  person,  so  far  as  may 
be  necessary  for  its  interests  in  the  event  of  its 
subsequent  birth. 

See  also  sections  1337  and  1339,  posthumous 
children  taking  under  will. 

§§  30,  31.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  182.    In  effect  July  1,  1874.] 

§  32.  The  custody  of  minors  and  persons  of 
unsound  mind  is  regulated  by  Part  III  of  this 
division. 

§  33.  A  minor  cannot  give  a  delegation  of 
power,  nor  under  the  age  of  eighteen,  make  a 
contract  relating  to  real  property,  or  any  interest 
therein,  or  relating  to  any  personal  property  not 
in  his  immediate  possession  or  control.  [Amend- 
ment approved  March  30,  1874;  Amendments 
1873-4,  182.    In  effect  July  1,  1874.] 

§  34.  A  minor  may  make  any  other  contract 
than  as  above  specified,  in  the  same  manner  as 
an  adult,  subject  only  to  his  power  of  disaffirm- 
ance under  the  provisions  of  this  title,  and  sub- 
ject to  the  provisions  of  the  titles  on  Marriage, 
and  on  Master  and  Servant.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4,  183. 
In  effect  July  1,  1874.] 

Marriage:  See  sees.  55  et  seq. 

Master  and  servant:  See  sees.  264  et  seq. 

§  35.  In  all  cases  other  than  those  specified  In 
sections  thirty-six  and  thirty-seven,  the  contract 
of  a  minor,  if  made  whilst  he  is  under  the  age  of 
eighteen,  may  be  disaffirmed  by  the  minor  him- 
self, either  before  his  majority  or  within  a  rea- 
sonable time  afterwards;  or,  in  case  of  his  death 
within  that  period,  by  his  heirs  or  personal  rep- 
resentatives; and  if  the  contract  be  made  by  the 
minor  whilst  he  is  over  the  age  of  eighteen.   It 


15  PERSONS.  §§    36-40 

may  be  disaffirmed  in  like  manner  upon  restoring 
the  consideration  to  the  party  from  whom  it  was 
received,  or  paying  its  equivalent.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4, 
183.    In  effect  July  1,  1874.] 

§  36.  A  minor  cannot  disaffirm  a  contract,  oth- 
erwise valid,  to  pay  the  reasonable  value  of 
things  necessary  for  his  support,  or  that  of  his 
family,  entered  into  by  him  when  not  under  the 
care  of  a  parent  or  guardian  able  to  provide  for 
him  or  them.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  183.  In  effect  July  1, 
1874.] 

§  37.  A  minor  cannot  disaffirm  an  obligation, 
otherwise  valid,  entered  into  by  him  under  the 
express  authority  or  direction  of  a  statute. 

§  38.  A  person  entirely  without  understanding 
has  no  power  to  make  a  contract  of  any  kind,  but 
he  is  liable  for  the  reasonable  value  of  things 
furnished  to  him  necessary  for  his  support  or  the 
support  of  his  family.  [Amendments  approved 
March  30,  1874:  Amendments  1873-4,  183.  In  ef- 
fect July  1,  1874.] 

§  39.  A  conveyance  or  other  contract  of  a  per- 
son of  unsound  mind,  but  not  entirely  without 
understanding,  made  before  his  incapacity  has 
been  judicially  determined,  is  subject  to  rescis- 
sion, as  provided  in  the  chapter  on  Rescission  of 
this  Code.  [Amendment  approved  March  30, 
1874:  Amendments  1873-4,  184.  In  effect  July  1, 
1874.] 

See  post,  sec.  1550. 

§  40.  After  his  incapacity  has  been  judicially 
determined,  a  person  of  unsound  mind  can  make 
no  conveyance  or  other  contract,  nor  delegate 
any  power,  nor  waive  any  right,  until  his  restora- 
tion to  capacity.    But  a  certificate  from  the  medi- 


§§   41,    42  PERSONS.  16 

cal  superintendent  or  resident  physician  of  the 
insane  asylum  to  which  such  person  may  have 
been  committed,  showing  that  such  person  has 
been  discharged  tlierefrom  cured  and  restored  to 
reason,  shall  establish  the  presumption  of  legal 
capacity  in  such  person  from  the  time  of  such 
discharge.  [Amendment  approved  March  30, 
1878;  Amendments  1877-8,  75.  In  effect  May  29, 
1878.] 

§  41.  A  minor,  or  person  of  unsound  mind,  of 
whatever  degree,  is  civilly  liable  for  a  wrong 
done  by  him,  but  is  not  liable  in  exemplary  dam- 
ages unless  at  the  time  of  the  act  he  was  capable 
of  knowing  that  it  was  wrongful. 

§  42.  A  minor  may  enforce  his  rights  by  civil 
action,  or  other  legal  procedings,  in  the  same 
manner  as  a  person  of  full  age,  except  that  a 
guardian  must  conduct  the  same. 


PAKT   II. 


PERSONAL  EIGHTS. 

§  43.  General  personal   rights. 

§  44.  Defamation,    what, 

§  45.  Libel,  what. 

§  46.  Slander,    what. 

§  47.  "What  communications  are  privileged. 

§  48.  Malice  not  inferied. 

§  49.  Protection  to  personal  relations. 

§  50.  Right  to  use  force. 

§  43.  Besides  the  personal  rights  mentioned 
or  recognized  in  the  Political  Code,  every  person 
has,  subject  to  the  qualifications  and  restrictions 
provided  by  law,  the  right  of  protection  from 
bodily  restraint  or  harm,  from  personal  Insult, 
from  defamation,  and  from  injury  to  his  personal 
relations. 

See  Pol.  Code,  sees.  37,  50-60;  Penal  Code,  sees. 
34G-349. 

§  44.    Defamation  is  effected  by: 

1.  Libel; 

2.  Slander. 

§  45.  Libel  is  a  false  and  unprivileged  publi- 
cation by  writing,  printing,  picture,  effigy,  or  other 
fixed  representation  to  the  eye,  which  exposes 
any  person  to  hatred,  contempt,  ridicule,  or  ob- 
loquy, or  which  causes  him  to  be  shunned  or 
avoided,  or  which  has  a  tendency  to  injure  him  in 
his  occupation. 

See  sec.  461,  Code  Civ.  Proc. 

Privileged  publication:  See  sees.  47,  48,  infra. 


§§  46,  47  PERSONAL  RIGHTS.  18 

§  46.  Slander  is  a  false  and  unprivileged  pub- 
lication other  than  libel,  which: 

1.  Charges  any  person  with  crime,  or  with  hav- 
ing been  indicted,  convicted,  or  punished  for 
crime; 

2.  Imputes  in  him  the  present  existence  of  an 
infectious,  contagious,  or  loathsome  disease; 

3.  Tends  directly  to  injure  him  m  respect  to 
his  office,  profession,  trade,  or  business,  either  by 
imputing  to  him  general  disqualification  in  those 
respects  which  the  office  or  other  occupation  pe- 
culiarly requires,  or  by  imputing  something  with 
reference  to  his  office,  profession,  trade,  or  busi- 
ness that  has  a  natural  tendency  to  lessen  its 
profit;  -  •  ' 

4.  Imputes  to  him  impotence  or  a  want  of  chas- 
tity; or, 

5.  Which,  by  natural  consequence,  causes  act- 
ual damage. 

§  47.    A  privileged  publication  is  one  made— 

1.  In  the  proper  discharge  of  an  official  duty. 

2.  In  any  legislative  or  judicial  proceeding,  or 
in  any  other  official  proceeding  authorized  by 
law. 

3.  In  a  communication,  without  malice,  to  a 
person  interested  therein,  by  one  who  is  also  in- 
terested, or  by  one  who  stands  in  such  relation 
to  the  person  interested  as  to  afford  a  reasonable 
ground  for  supposing  tlie  motive  for  the  commu- 
nication innocent,  or  who  is  requested  by  the  per- 
son interested  to  give  the  information. 

4.  By  a  fair  and  true  report,  without  malice, 
in  a  public  journal,  of  a  judicial,  legislative,  or 
other  public  official  proceeding,  or  of  anything 
said  in  the  course  thereof,  or  of  a  verified  charge 
or  complaint  made  by  any  person  to  a  public  of- 
ficial, upon  which  complaint  a  warrant  shall  have 
been  issued. 

5.  By  a  fair  and  true  report,  without  malice,  of 
the  proceedings  of  a  public  meeting,  if  such  meet- 


19  PERSONAL  RIGHTS.  §§  48-50 

ing  was  lawfully  couvened  for  a  lawful  purpose 
and  open  to  the  public,  or  the  publication  of  the 
matter  complained  of  was  for  the  public  benefit. 
[Amendments  approved  March  26,  1895,  Stats. 
1895,  p.  123.    In  effect  immediately.] 

§  48.  In  the  cases  provided  for  in  subdivisions 
three,  four,  and  live,  of  the  preceding  section, 
malice  is  not  inferred  from  the  communication  or 
publication.  [Amendment  approved  March  26, 
1895;  Stats.  1895,  p.  123.    In  effect  immediately.] 

§  49.    The  rights  of  personal  relation  forbid: 

1.  The  abduction  of  a  husband  from  his  wife, 
or  of  a  parent  from  his  child; 

2.  The  abduction  or  enticement  of  a  wife  from 
her  husband,  of  a  child  from  a  parent  or  from  a 
guardian  entitled  to  its  custody,  or  of  a  servant 
from  his  master; 

3.  The  seduction  of  a  wife,  daughter,  orphan 
sister,  or  servant; 

4.  Any  injury  to  a  servant  which  affects  his 
ability  to  serve  his  master. 

Action  for  seduction:  See  sees.  374,  375,  Code 
Civ.  Proc. 

§  50.  Any  necessary  force  may  be  used  to  pro- 
tect from  wrongful  injury  the  person  or  property 
of  one's  self,  or  of  a  wife,  husband,  child,  parent, 
or  other  relative,  or  member  of  one's  family,  or 
of  a  ward,  servant,  master,  or  guest.  [Amend- 
ment approved  March  30,  1874;  Amendments 
1873-4,  184.    In  effect  July  1,  1874.] 

Lawful  resistance  to  the  commission  of  of- 
fenses.   See   Penal  Code,   sees.   692-694. 


PAET   III. 


PERSONAL   RELATIONS. 

Title    I.    Marriage,  §§  55-181. 

II.  Parent  and  Child,  §§  193-230. 

III.  Guardian  and  Ward,  §§  236-258. 

IV.  Master  and  Servant,  §§  264-276. 

TITLE  I. 

MARRIAGE. 

Chapter  I.    The  Contract  of  Marriage,  §§  55-80. 
II.    Divorce,  §§  82-148. 
III.    Husband  and  Wife,  §§  155-181. 

CHAPTER  L 

THE  CONTRACT  OP  MARRIAGE. 

Article  I.    Validity  of  Marriage,   §§  55-63. 

II.    Authentication  of  Marriage,   §§  68-78. 

III.  Judicial   Determination  of  Void  Marriage,    §  i 

ARTICLE  I. 

VALIDITY   OF   MARRIAGE. 

§  55.  What  constitutes  marriage. 

§  56.  Minors  capable  of  contracting  marriage. 

§  57.  Marriage,   how  manifested  and  proved. 

§  58.  Certain   marriages   voidable. 

§  59.  Incompetency  of  parties  to. 

§  60.  Of  whites  and   pperoes  or  mulattoes,   void. 

5  61.  Polygamy  forbidden. 

§  62.  Released  from  marriage  contract,  when. 

S  63.  Marriage  contracted  without  the  State. 


21  MARRIAGE.  §§  55-59 

§  55.  Marriage  is  a  personal  relation  arising 
out  of  a  civil  contract,  to  Avliicli  the  consent  of 
parties  capable  of  making  that  contract  is  neces- 
sary. Consent  alone  will  not  constitute  marriage; 
it  must  be  followed  by  a  solemnization  autlior- 
ized  by  this  Code.  [Amendment  approved  March 
26,  1895;  Stats.  1895,  p.  88.  In  effect  in  sixty 
days.] 

Bigamy  is  defined  in  Penal  Code,  sec.  281,  and 
punished  by  sees.  283-4. 

§  56.  Any  unmarried  male  of  the  age  of  eight- 
een years  or  upwards,  and  any  unmarried  female 
of  the  age  of  fifteen  years  or  upwards,  and  not 
otherwise  disqualified,  are  capable  of  consenting 
to  and  consummating  marriage. 

§  57.  Consent  to  marriage  and  solemnization 
thereof  may  be  proved  under  the  same  general 
rules  of  evidence  as  facts  are  proved  in  other 
cases.  [Amendment  approved  March  26,  1895; 
Stats.  1895,  p.  88.    In  effect  in  sixty  days.] 

§  58.  If  either  party  to  a  marriage  be  incapa- 
ble from  physical  causes  of  entering  into  the  mar- 
riage state,  or  if  the  consent  of  either  be  obtained 
by  fraud  or  force,  the  marriage  is  voidable. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  185.    In  effect  July  1,  1874.] 

Penalty  for  false  personation    in  marital    rela- 
tions, Penal  Code,  sec.  528. 
See  sec.  82,  subd.  G. 

§  59.  Marriages  between  parents  and  children, 
ancestors  and  descendants  of  every  degree,  and 
between  brothers  and  sisters  of  the  half  as  well 
as  the  whole  blood,  and  between  uncles  and 
nieces  or  aunts  and  nephews,  are  incestuous,  and 
void  from  the  beginning,  whether  the  relationship 
is  legitimate  or  illegitimate. 


§§  60-63  MARRIAGE.  22 

Penalty  for  incestuous  marriages,  Penal  Code, 
sees.  285,  359. 

§  60.  All  marriages  of  white  persons  with  ne- 
groes or  mulattoes  are  illegal  and  void. 

§  61.  A  subsequent  marriage  contracted  by  any 
person  during  the  life  of  a  former  husband  or 
wife  of  such  person,  with  any  person  other  than 
such  former  husband  or  wife,  is  illegal  and  void 
from  the  beginning,  unless: 

1.  The  former  marriage  has  been  annulled  or 
dissolved;  provided,  that  in  case  it  be  dissolved, 
the  decree  of  divorce  must  have  been  rendered 
and  made  at  least  one  year  prior  to  such  subse- 
quent marriage. 

2.  Unless  such  former  husband  or  wife  was 
absent,  and  not  linown  to  such  person  to  be  living 
for  the  space  of  live  successive  years  immediate- 
ly preceding  such  subsequent  marriage,  or  was 
generally  reputed  or  believed  by  such  person  to 
be  dead,  at  the  time  such  subsequent  marriage 
was  contracted;  in  either  of  which  cases  the  sub- 
sequent marriage  is  valid  until  its  nullity  is  ad- 
judged by  a  competent  tribunal.  [Approved 
February  25,  1897;  ch.  xxxvi.] 

Penalty  for  bigamy,  Penal  Code,  sees.  283-84; 
exceptions,  sec.  282. 

§  62.  Neither  party  to  a  contract  to  marry  is 
bound  hy  a  promise  made  in  ignorance  of  the 
other's  want  of  personal  chastity,  and  either  is 
released  therefrom  by  unchaste  conduct  on  the 
part  of  the  other;  unless  both  parties  participate 
therein.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  185.    In  effect  July  1,  1874.] 

§  63.  All  marriages  contracted  without  this 
State,  which  would  be  valid  by  the  laws  of  the 
country  in  which  the  same  w^ere  contracted,  are 
valid  in  this  State. 


23  MARRIAGE.  §§  68,  69 

ARTICLE  II. 

AUTHENTICATION    OF    MARRIAGE. 

§  68.  Marriage,  how  solemnized. 

§  69.  Marriage  license. 

§  70.  By   whom    solemnized. 

§  71.  No  particular  form  of  solemnization. 

§  72.  Substantial    requisites. 

§  73.  Certificate  of  marriage. 

§  74.  Certificate  to  parties  and  recorder. 

§  75.  Declaration  of  marriage,   how  made. 

§  76.  Declaration  to  contain  what. 

§  77.  To  be  acknowledged  and  recorded. 

§  78.  Action  between   the  parties   to  determine  validity. 

§  79.  Persons  who  may  be  married  without  license. 

§  IdVz.  Members   of  particular   religious   denomination. 

§  68.  Marriage  must  be  licensed,  solemnized, 
authenticated,  and  recorded  as  provided  in  this 
article;  but  noncompliance  with  its  provisions  by 
other  than  the  parties  to  a  marriage  does  not  in- 
validate that  marriage.  [Amendment  approved 
March  26,  1895;  Stats.  1895,  p.  88.  In  effect  in 
sixty  days.] 

§  69.  All  persons  about  to  be  joined  in  mar- 
riage must  first  obtain  a  license  therefor  from  the 
county  clerk  of  the  county  in  which  the  marriage 
is  to  be  celebrated,  showing: 

1.  The  identity  of  the  parties; 

2.  Their  real  and  full  names  and  places  of  res- 
idence; 

3.  Their  ages. 

4.  If  tlie  male  be  under  the  age  of  twenty-one, 
or  the  female  under  the  age  of  eighteen  years, 
the  consent  of  the  father,  mother,  or  guardian, 
or  of  one  having  the  charge  of  such  person,  if  any 
such  be  given:  or  that  such  nonaged  person  has 
been  previously,  but  is  not  at  the  time,  married. 
For  the  purpose  of  ascertaining  these  facts,  the 
clerk  is  authorized  to  examine  parties  and  wit- 
nesses on  oath,  and  to  receive  affidavits,  and  he 
must  state  such  facts  in  the  license.  If  the  male 
be  under  the  age  of  twenty-one  years,  or  the  fe- 


§§  70-73  MARRIAGE.  24 

male  be  under  the  age  of  eighteen,  and  such  per- 
son has  not  been  previously  married,  no  license 
shall  be  issued  by  the  clerk,  unless  the  consent 
in  writing  of  the  parents  of  the  person  under  age, 
or  of  one  of  such  parents,  or  of  his  or  her  guard- 
ian, or  of  one  having  charge  of  such  person,  be 
presented  to  him;  and  such  consent  shall  be  filed 
by  the  clerk,  provided  that  the  said  clerk  sliall 
not  issue  a  license  authorizing  the  marriage  of  a 
white  person  with  a  negro,  mulatto,  or  Mongo- 
lian. [Amendment  approved  April  6,  1880; 
Amendments  1880,  3.    In  effect  immediately.] 

§  70.  Marriage  may  be  solemnized  by  either  a 
justice  of  the  Supreme  Court,  judge  of  the  Supe- 
rior Court,  justice  of  the  peace,  priest,  or  minis- 
ter of  the  gospel  of  any  denomination.  [Amend- 
ment approved  April  6,  1880;  Amendments  1880, 
3.    In  effect  immediately.] 

Penalty  for  solemnization  of  illegal  marriage, 
Penal  Code.  sec.  359. 

§  71.  No  particular  form  for  the  ceremony  of 
marriage  is  required,  but  the  parties  must  de- 
clare, in  the  presence  of  the  person  solemnizing 
the  marriage,  that  they  take  each  other  as  hus- 
band and  wife.  [Const.  Cal.  1879,  art.  20,  sec.  7; 
so  also  art.  11,  sec.  12,  former  constitution.] 

§  72.  The  person  solemnizing  a  marriage  must 
first  require  the  presentation  of  the  marriage  li- 
cense; and  if  he  has  any  reason  to  doubt  the  cor- 
rectness of  its  statement  of  facts,  he  must  first 
satisfy  himself  of  its  correctness,  and  for  that 
purpose  he  may  administer  oaths  and  examine 
the  parties  and  witnesses  in  like  manner  as  the 
county  clerk  does  before  issuing  the  license. 
[Amendment  approved  March  30.  1874;  Amend- 
ments 1873-4,  186.    In  effect  July  1,  1874.] 

§  73.  The  person  solemnizing  a  marriage  must 
make,  sign,  and  indorse  upon,  or  attach  to,  the 
license,  a  certificate,  showing: 


25  MARRIAGE.  §§  74-78 

1.  The  fact,  time,  and  place  of  solemnization; 
and 

2.  The  names  and  places  of  residence  of  one 
or  more  witnesses  to  tlie  ceremony,  [Amendment 
approved  March  30,  1874;  Amendments  1873-4, 
187.    In  effect  July  1,  1874.] 

Penalty  for  false  return.  Penal  Code,  sec,  300. 

§  74.  He  must,  at  the  request  of,  and  for  either 
party  malie  a  certified  copy  of  the  license  and 
certificate,  and  file  the  originals  with  the  county 
recorder  within  thirty  days    after  the    marriage. 

Recorder  must  record:  Pol.  Code,  sec.  4235. 

§  75.  Section  seventy-five  repealed.  [Amend- 
ment, approved  March  26,  1895;  Stats.  1895,  S8. 
In  effect  in  sixty  days.] 

§  76.  If  no  record  of  the  solemnization  of  a, 
marriage  heretofore  contracted  be  known  to  ex- 
ist, the  parties  may  join  in  a  written  declaration 
of  such  marriage,  substantially  showing: 

1,  The  names,  ages,  and  residences  of  the  par- 
ties; 

2,  The  fact  of  marriage; 

3,  That  no  record  of  such  marriage  is  linown 
to  exist.  Such  declaration  must  be  subscribed  by 
the  parties  and  attested  by  at  least  three  witnesses. 

[Amendment   approved   March   30,    1874;   Amend- 
ments 1873-4,  187.    In  effect  July  1,  1874.] 
See  Penal  Code,  sec.  360, 

§  77,  Declarations  of  marriage  must  be  ac- 
knowledged and  recorded  in  lilvc  manner  as 
grants  of  real  property. 

See  Pol.  Code,  sec,  42.35. 

§  78.  If  either  party  to  any  marriage  denies 
the  same,  or  refuses  to  join  in  a  declaration  there- 
of, the  other  may  proceed,  by  action  in  the  Supe- 
rior Court,  to  have  the  validity  of  the  marriage 
determined  and  declared.  [Amendment  approved 
Civ.    Code— 3 


§§  79,  791^  MARRIAGE.  23 

February  15,  1883;  Stats.  1883,  3.    In  effect  Feb- 
ruary 15,  1883.] 

§  79.  When  unmarried  persons,  not  minors, 
have  been  living  togetlier  as  man  and  wife,  they 
may,  without  a  license,  be  married  by  any  clergy- 
man. A  certificate  of  such  marriage  must,  by  the 
clergyman,  be  made  and  delivered  to  the  parties, 
and  recorded  upon  the  records  of  the  church  of 
which  the  clergyman  is  a  representative.  No  oth- 
er record  need  be  made.  [New  section  approved 
February  6,  1878;  Amendments  1877-8,  75.  In  ef- 
fect February  6,  1878.] 

§  79^/4-  The  provisions  of  this  chapter,  so  far  as 
they  relate  to  procui-ing  licenses  and  the  solemn- 
izing of  marriages,  are  not  applicable  to  members 
of  any  particular  religious  denomination  having, 
as  such,  any  peculiar  mode  of  entering  the  mar- 
riage relation;  but  such  marriages  shall  be  de- 
clared, as  provided  in  section  seventy-six  of  the 
Civil  Code  of  this  State,  and  shall  be  acknowl- 
edged and  recorded,  as  provided  in  section  seventy- 
seven  of  said  Civil  Code.  Where  a  marriage  is 
declared  as  is  provided  in  section  seventy-six,  the 
husband  shall  file  said  declaration  with  the  County 
Recorder  within  thirty  days  after  said  marriage, 
and  upon  receiving  the  same  the  County  Recorder 
shall  record  the  same;  and  if  the  husband  fail  to 
make  such  declaration  and  file  the  same  for  rec- 
ord, as  herein  provided,  he  shall  be  liable  to  the 
same  penalties  as  any  person  authorized  to  solemn- 
ize marriages,  and  who  fails  to  make  the  return 
of  such  solemnization  as  provided  by  law.  [New 
section  approved  March  27,  1897;  Stats.  1897,  c. 
126.] 

ARTICLE  III. 

JUDICIAL    DETERMINATION    OP    VOID    MARRIAGES. 

This  article,  as  an  entirety,  was  added  to  the 
Civil  Code  by  act  of  March  15,  1876;  Amendments 
1875-6,  69;  took  effect  from  passage. 


27  MARRIAGE.  §§  80,  82 

§  80.  Either  party  to  an  incestuous  or  void 
marriage  may  proceed  by  action  in  tlie  Superior 
Court,  to  have  the  same  so  declared.  [Amend- 
ment approved  April  6,  1880;  Amendments  1880, 
4.    In  effect  immediately.] 

CHAPTER   II. 

DIVORCE. 

Article  I.  Nullity,  §§  82-86. 

II.  Dissolution,    §§    90-107. 

III.  Causes  for  Denying  Divorce,  §§  111-130. 

IV.  General  Provisions,   §§  136-148. 


ARTICLE  I. 

NULLITY. 

§  82.     Cases   where   marriage   may  be  annulled. 

§  83.    Action   to   obtain   decree   of   nullity  in   certain   cases, 

when   and  by  whom   commenced. 
§  84.     Children  of  annulled  marriage. 
§  85.     Custody   of   children. 
§  86.     Effect  of  judgment   of  nullity. 

§  82.  A  marriage  may  be  annulled  for  any  of 
the  following  causes,  existing  at  the  time  of  the 
marriage: 

1.  That  the  party  in  whose  behalf  it  is  sought 
to  have  the  marriage  annulled  was  under  the  age 
of  legal  consent,  and  such  marriage  was  con- 
tracted without  the  consent  of  his  or  her  parents 
or  guardian,  or  person  having  charge  of  him  or 
her;  unless,  after  attaining  the  age  of  consent, 
such  party  for  any  time  freely  cohabited  with  the 
other  as  husband  or  wife; 

2.  That  the  former  husband  or  wife  of  either 
party  was  living,  and  the  marriage  with  such 
former  husband  or  wife  was  then  in  force; 

3.  That  either  party  was  of  unsound  mind,  un- 
less such  party,  after  coming  to  reason,  freely  co- 
habit with  the  other  as  husband  or  wife; 

4.  That  the  consent  of  either  party  was  ob- 
tained  by  fraud,   unless    such    party  afterward, 


§  83  MARRIAGE.  28 

with  full  knowledjre  of  the  facts  constituting]:  the 
fraud,  freely  cohabited  with  the  other  as  husband 
or  wife; 

5.  That  the  consent  of  either  party  was  obtain- 
ed by  force,  unless  such  party  afterwards  freely 
cohabited  with  the  other  as  husband  or  wife; 

6.  That  either  party  was,  at  the  time  of  mar- 
riage, physically  incapable  of  enterins:  into  the 
married  state,  and  such  incapacity  continues,  and 
appears  to  be  incurable.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  187.  In  ef- 
fect July  1,  1874.] 

Subd.  5.  Consent  obtained  by  force:  See  sec. 
58,  ante. 

§  83.  An  action  to  obtain  a  decree  of  nullity 
of  marriage  for  causes  mentioned  in  the  preced- 
ing section,  must  be  commenced  within  the  pe- 
riods and  by  the  parties  as  follows: 

1.  For  causes  mentioned  in  subdivision  one:  by 
the  party  to  the  marriage  wlio  was  married  under 
the  age  of  legal  consent,  within  four  years  after 
arriving  at  the  age  of  consent;  or  by  a  parent, 
guardian,  or  other  person  having  charge  of  such 
nonaged  male  or  female,  at  any  time  before  such 
married  minor  has  arrived  at  the  age  of  legal 
consent; 

2.  For  causes  mentioned  in  subdivision  two:  by 
either  party  during  the  life  of  the  other,  or  by 
such  former  husband  or  wife; 

3.  For  causes  mentioned  in  subdivision  three: 
by  the  party  injured,  or  relative  or  guardian  of 
the  party  of  unsound  mind,  at  any  time  before 
the  death  of  either  party; 

4.  For  causes  mentioned  in  subdivision  four: 
by  the  party  injured,  within  four  years  after  the 
discovery  of  the  facts  constituting  the  fraud; 

5.  For  causes  mentioned  in  subdivision  five:  by 
the  injured  party,  within  four  years  after  the 
marriage; 

6.  For  causes  mentioned  in  subdivision  six:  by 
the  injured  party,  within  four    years    after  the 


29  MARRIAGE.  §§  84-86 

marriage.   [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  188.    In  effect  July  1,  1874.] 

§  84.  ^Vliere  a  marriage  is  annulled  on  the 
ground  that  a  former  husband  or  wife  was  liv- 
ing, or  on  the  ground  of  insanity,  children  begot- 
ten before  the  judgment  are  legitimate,  and  suc- 
ceed to  the  estate  of  both  parents. 

Legitimate  children,  who  are:  See  sees.  193-195. 
See,  also,  when  the  question  arises  in  divorce 
cases  for  adultery,  sees.  144,  145. 

§  85.  The  court  must  award  the  custody  of 
the  children  of  a  marriage  annulled  on  the  ground 
of  fraud  or  force  to  the  innocent  parent,  and  may 
also  provide  for  their  education  and  maintenance 
out  of  the  property  of  the  guilty  party. 

Custody  of  children  in  divorce  causes:  See  sec. 
138,  post. 

§  86.  A  judgment  of  nullity  of  marriage  ren- 
dered is  conclusive  only  as  against  the  parties  to 
the  action  and  those  claiming  under  them. 

Conclusiveness  of  decree  for  divorce:  See  sec. 
91,  post. 


§ 

90. 

s 

91. 

§ 

92, 

§ 

93. 

§ 

94. 

§ 

95. 

§ 

96. 

§ 

97. 

§ 

98. 

§ 

99. 

§  100. 

§  101. 

§ 

102. 

§§  90-92  MARRIAGE.  30 

ARTICLE  II. 

DISSOLUTION   OF   MARRIAGE. 

Marriage,  how  dissolved. 
Divorce,    what. 
Causes   for   divorce. 
Adultery    defined. 
Extreme    cruelty,    what. 
Desertion,    what. 
Desertion,  how  manifested. 

In  case  of  stratagem  or  fraud,  who  commits  deser- 
tion. 
In    case    of    cruelty,    where     one     party    leaves    the 

other,    who  commits   desertion. 
Seraration  hy  consent  not  desertion. 
Separation  and   intent  to  desert  not   always   coinci- 
dent. 
Consent  to   separate   revocable. 

Desertion,   how  cured.     Effect   of  refusing   condona- 
tion. 
§  103.    Wife  must  abide  by  husband's  selection  of  home    or 

it  is  desertion  on  her  part. 
§  104.    If  the   place  is  unfit,   and  wife  refuses  to  conform, 

it  is  desertion  by  the  husband. 
§  105.    Willful  neglect,   what. 
§  106.    Habitual    intemperance,    what. 
§  107.    Habitual   intemperance  for  one  year. 

§  90.    Marriage  is  dissolved  only: 

1.  By  the  death  of  oue  of  the  parties;  or, 

2.  By  the  judgment  of  a  court  of  competent  ju- 
risdiction decreeing  a  divorce  of  the  parties. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  189.    In  effect  July  1,  1874.] 

§  91.  The  effect  of  a  judgment  decreeing  a  di- 
vorce is  to  restore  the  parties  to  the  state  of  un- 
married persons.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  189.  In  effect  July 
1,  1874.] 

§  92.    Divorces  may  he  granted  for  any  of  the 
following  causes: 
1.    Adultery; 


31  MARKIAGW.  §§  93-97 

2.  Extreme  cruelty; 

3.  Willful  desertion; 

4.  Willful  neglect; 

5.  Habitual  intemperance; 

6.  Conviction  of  felony.  [Amendment  approv- 
ed March  30,  1S74;  Amendments  1873-4,  189.  In 
effect  July  1,  1874.] 

Findings:  See  generally  upon  this  topic,  Code 
Civ.  Proc,  sees.  631  et  seq. 

Alimony:  See  sees.  136,  post,  et  seq. 

Community  property,  and  its  disposition  under 
proceedings  for  divorce:  Sees.  141,  post,  et  seq. 

§  93.  Adultery  is  the  voluntary  sexual  inter- 
course of  a  married  person  with  a  person  other 
than  the  offender  s  husband  or  wife. 

Open  and  notorious  adultery  is  punished  by 
Act  of  May  15,  1872.    See  Stats.  1871-2,  p.  380. 

§  94.  Extreme  cruelty  is  the  infliction  of  griev- 
ous bodily  injury  or  grievous  mental  suffering  up- 
on the  other  by  one  party  to  the  marriage. 

§  95.  AYillful  desertion  is  the  voluntary  separa- 
tion of  one  of  tlie  married  parties  from  the  other 
with  intent  to  desert. 

§  96.  Persistent  refusal  to  have  reasonable 
matrimonial  intercourse  as  husband  and  wife, 
when  health  or  physical  condition  does  not  make 
such  refusal  reasonably  necessary,  or  the  refusal 
of  either  party  to  dwell  in  the  same  house  with 
the  other  party,  when  there  is  no  just  cause  for 
such  refusal,  is  desertion. 

§  97.  When  one  party  is  induced,  by  the 
stratagem  or  fraud  of  the  other  party,  to  leave 
the  family  dwelling-place,  or  to  be  absent,  and 
during  such  absence  the  offending  party  departs 
with  intent  to  desert  the  other,  it  is  desertion  by 
the  party  committing  the  stratagem  or  fraud,  and 
not  by  the  other. 


|§  98-103  MARRIAGE.  32 

§  98.  Departure  or  absence  of  one  party  from 
the  family  dwelling-place,  caused  by  cruelty  or 
threats  of  bodily  barm,  from  which  danger  would 
be  reasonably  apprehended  from  the  other,  is  not 
desertion  by  the  absent  party,  but  it  is  desertion 
by  the  other  party. 

§  99.  Separation  by  consent  with  or  without 
the  understanding  that  one  of  the  parties  will  ap- 
ply for  a  divorce,  is  not  desertion. 

Consent  revocable:  See  infra,  sec.  101. 

§  100.  Absence  or  separation,  proper  in  itself, 
becomes  desertion  whenever  the  intent  to  desert 
is  fixed  during  such  absence  or  separation. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  189.    In  effect  July  1,  1874.] 

§  101.  Consent  to  a  separation  is  a  revocable 
act,  and  if  one  of  the  parties  afterward,  in  good 
faith,  seel^s  a  reconciliation  and  restoration,  but 
the  other  refuses  it,  such  refusal  is  desertion. 

§  102.  If  one  party  deserts  the  other,  and  be- 
fore the  expiration  of  the  statutory  period  re- 
quired to  make  the  desertion  a  cause  of  divorce,  re- 
turns and  offers  in  good  faith  to  fulfill  the  mar- 
riage contract,  and  solicits  condonation,  the  de- 
sertion is  cured.  If  the  other  party  refuse  such 
offer  and  condonation,  the  refusal  shall  be  deem- 
ed and  treated  as  desertion  by  such  party  from 
the  time  of  refusal.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  190.  In  ef- 
fect July  1,  1874.] 

§  103.  Q^he  husband  may  choose  any  reasona- 
ble place  or  mode  of  living,  and  if  the  wife  does 
not  conform  thereto,  it  is  desertion. 

Same  principle,  sec.  156,  post. 

Separate  domicile  for  purposes  of  divorce  pro- 
ceeding: See  infra,  sec.  129. 


33  MARRIAGE.  §§  104-107 

§  104.  If  the  place  or  mode  of  living  selected 
by  the  husband  is  unreasonable  and  grossly  unfit, 
and  the  wife  does  not  conform  thereto,  it  is  de- 
sertion on  the  part  of  the  husband  from  the  time 
her  reasonable  objections  are  made  known  to  him. 

§  105.  Willful  neglect  is  the  neglect  of  the  hus- 
band to  provide  for  his  wife  the  common  neces- 
saries of  life,  he  having  the  ability  to  do  so;  or 
it  is  the  failure  to  do  so  by  reason  of  idleness, 
profligacy,  or  dissipation. 

See  sec.  169,  infra. 

§  106.  Habitual  intemperance  is  that  degree  of 
intemperance  from  the  use  of  intoxicating  drinks 
which  disqualifies  the  person  a  great  portion  of 
the  time  from  properly  attending  to  business,  or 
which  would  reasonably  inflict  a  course  of  great 
mental  anguish  upon  the  innocent  party. 

Duration  of  intemperance:  See  next  section. 

§  107.  Willful  desertion,  willful  neglect,  or 
habitual  intemperance  must  continue  for  one 
year  before  either  is  a  ground  for  divorce. 


§§  111-113  MARRIAGE.  34 

ARTICLE  III. 

CAUSES    FOR    DENYING    DIVORCE. 

§  111,    Divorces  denied,   on  showing  what. 

§  112.    Connivance,   what. 

§  113.    Corrupt   consent,   how  manifested. 

§  114.     Collusion,     what. 

§  115.    Condonation,   what. 

§  116.     Requisites  to  condonation. 

§  117.     Condonation  implies   what. 

§  118.    Evidence  of  condonation. 

§  119.     Condonation,   when   operates  to  bar  divorce. 

§  120.  Concealment  of  facts  in  certain  cases  makes  con- 
donation void. 

§  121.     Condonation,    how   revoked. 

§  122.    Recrimination,    what. 

§  123.  Condonation  in  a  recriminatory  defense  a  bar  to 
such   defense,   when. 

§  124.     Divorces     denied,     when. 

§125.    Lapse  of  time  establishes  certain  presumptions. 

§  126.    Presumptions   may   be    rebutted. 

§  127.    Limitation    of    time. 

§  128.    Divorces   granted,   when. 

§  129.  Proof  of  actual  residence  required.  Presumptions 
do  not  apply. 

§  130.    Divorce  not  to  be  granted  by  default,   &c. 

§  111.    Divorces  must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or, 

3.  Condonation;  or, 

4.  Recrimination;  or, 

5.  Limitation  and  lapse  of  time. 

§  112.  Connivance  is  the  corrupt  consent  of 
one  party  to  the  commission  of  the  acts  of  the 
other,  constituting  the  cause  of  divorce. 

§  113.  Corrupt  consent  is  manifested  by  pas- 
sive permission,  with  intent  to  connive  at  or  ac- 
tively procure  the  commission  of  the  acts  com- 
plained of. 


35  MARRIAGE.  §§  114-U9 

§  114.  Collusion  is  an  agreement  betTveen  hus- 
band and  wife  that  one  of  them  shall  commit,  or 
appear  to  have  committed,  or  to  be  represented 
in  court  as  having  conmiitted,  acts  constituting  a 
cause  of  divorce,  for  the  purpose  of  enabling  the 
other  to  obtain  a  divorce. 

§  115.  Condonation  is  the  conditional  forgive- 
ness of  a  matrimonial  offense  constituting  a  cause 
of  divorce. 

Revoking  condonation:  Sec,  121,  infra. 

Condonation  of  recriminatory  defense:  Sec.  123, 
post. 

§  116.  The  following  requirements  are  neces- 
sary to  condonation: 

1.  A  knowledge  on  the  part  of  the  condoner  of 
the  facts  constituting  the  cause  of  divorce; 

2.  Reconciliation  and  remission  of  the  offense 
by  the  injured  party; 

3.  Restoration  of  the  offending  party  to  all 
marital  rights. 

§  117.  Condonation  implies  a  condition  subse- 
quent; that  the  forgiving  party  must  be  treated 
with  conjugal  kindness. 

§  118.  Where  the  cause  of  divorce  consists  of 
a  course  of  offensive  conduct,  or  arises,  in  cases 
of  cruelty,  from  successive  acts  of  ill-treatment, 
which  may,  aggregately,  constitute  the  offense, 
cohabitation,  or  passive  endurance,  or  conjugal 
kindness,  shall  not  be  evidence  of  condonation  of 
any  of  the  acts  constituting  such  cause,  unless  ac- 
companied by  an  express  agreement  to  condone. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  190.    In  effect  July  1,  1874.] 

§  119.  In  cases  mentioned  in  the  last  section, 
condonation  can  be  made  only  after  the  cause  of 
divorce  has  become  complete,  as  to  the  acts  com- 


§§  120-124  MARRIAGE.  36 

plained  of.  [Ameudment  approved  March  30, 
1874;  Amendments  1873-4,  190.  In  effect  July  1, 
1874.] 

§  120.  A  fraudulent  concealment  by  the  con- 
donee  of  facts  constituting  a  different  cause  of 
divorce  from  the  one  condoned,  and  existing  at 
the  time  of  condonation,  avoids  such  condona- 
tion. 

§  121.  Condonation  is  revoked,  and  the  origi- 
nal cause  of  divorce  revived: 

1.  When  the  condonee  commits  acts  constitut- 
ing a  like  or  other  cause  of  divorce;  or, 

2.  When  the  condonee  is  guilty  of  great  con- 
jugal unkindness,  not  amounting  to  a  cause  of 
divorce,  but  sufficiently  habitual  and  gross  to 
show  that  the  conditions  of  condonation  had  not 
been  accepted  in  good  faith,  or  not  fulfilled. 

§  122.  Recrimination  is  a  showing  by  the  de- 
fendant of  any  cause  of  divorce  against  the  plain- 
tiff, in  bar  of  the  plaintiff's  cause  of  divorce. 

§  123.  Condonation  of  a  cause  of  divorce, 
shown  in  the  answer  as  a  recriminatory  defense, 
is  a  bar  to  such  defense,  unless  the  condonation 
be  revoked,  as  provided  in  section  one  hundred 
and  twenty-one,  or  two  years  have  elapsed  after 
the  condonation,  and  before  the  accruing  or  com- 
pletion of  the  cause  of  divorce  against  which  the 
recrimination  is  shown.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  190.  In  ef- 
fect July  1,  1874.] 

§  124.    A  divorce  must  be  denied: 

1.  When  the  cause  is  adultery,  and  the  action 
is  not  commenced  within  two  years  after  the  com- 
mission of  the  act  of  adultery,  or  after  its  discov- 
ery by  the  injured  party;  or, 

2.  When  the  cause  is  conviction  of  felony,  and 


37  MARRIAGE.  §§  125-130 

the  action  is  not  commenced  before  the  expiration 
of  two  years  after  a  pardon,  or  the  termination  of 
the  period  of  sentence; 

3.  In  all  other  cases  when  there  is  an  unreason- 
able lapse  of  time  before  the  commencement  of 
the  action.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  191.  In  effect  July  1, 
1874.] 

§  125.  Unreasonable  lapse  of  time  is  such  a  de- 
lay in  commencing  the  action  as  establishes  tlie 
presumption  that  there  has  been  connivance,  col- 
lusion, or  condonation  of  the  offense,  or  full  ac- 
quiescence in  the  same,  with  intent  to  continue 
the  marriage  relation,  notwithstanding  the  com- 
mission of  such  oft'ense. 

§  126.  The  presumptions  arising  from  lapse 
of  time  may  be  rebutted  by  showing  reasonable 
grounds  for  the  delay  in  commencing  the  action. 

§  127.  There  are  no  limitations  of  time  for 
commencing  actions  for  divorce,  except  such  as 
are  contained  in  section  124. 

§  128.  A  divorce  must  not  be  granted  unless 
the  plaintiff  has  been  a  resident  of  the  state  for 
one  year,  and  of  the  county  in  which  the  action 
is  brought  three  months  next  preceding  the  com- 
mencement of  the  action.  [Amendment  approved 
March  10,  1891;  Stats.  1891,  p.  52.] 

§  129.  In  actions  for  divorce  the  presumption 
of  law,  that  the  domicile  of  the  husband  is  the 
domicile  of  the  wife,  does  not  apply.  After  sepa- 
ration, each  may  have  a  separate  domicile,  de- 
pending for  proof  upon  actual  residence,  and  not 
upon  legal  presumptions. 

§  130.    No  divorce  can  be  granted  upon  the  de- 
fault of  the  defendant,  or  upon  the  uncorroborat- 
Civ.    Code— 4. 


§§  136,  137  MARRIAGE.  38 

ed  statement,  admission,  or  testimony  of  the  par- 
ties, or  upon  any  statement  or  finding  of  fact 
made  by  a  referee;  but  the  court  must,  in  addi- 
tion to  any  statement  or  finding  of  tlie  referee,  re- 
quire proof  of  tlie  facts  alleged,  and  such  proof,  if 
not  taken  before  the  court,  must  be  upon  written 
questions  and  ansAvers.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  191.  In  ef- 
fect July  1,  1874.] 

ARTICLE  IV. 

GENERAL    PROVISIONS. 

§  136.     Relief  may  be  adjudged,  where  separation  is  denied. 

§  137.    Expense  of  action,  alimony. 

§  138.     Orders  respecting  custody  of  children. 

§  139.  Support  of  wife  and  children  on  divorce  or  separa- 
tion granted  to  wife. 

§  140.     Security  for  maintenance  and  alimony. 

§  141.  Court  shall  resort  to  what,  in  executing  certain  sec- 
tions. 

§  142.  If  wife  has  suflBcient  support,  court  may  withhold 
allowance. 

§  143.  Community  and  separate  property  may  be  subjected 
to  support  and  educate  children. 

§  144.    Legitimacy  of  issue. 

§  145.     Same. 

§  146.     Disposition  of  community  property  on  divorce. 

§  147.    How  disposed  of  when  divorce  rendered  on  adultery. 

§  148.     Such  an  action  subject  to  revision  on  appeal. 

§  136.  Though  judgment  of  divorce  is  denied, 
the  court  may,  in  an  action  for  divorce,  provide 
for  the  maintenance  of  the  wife  and  her  children, 
or  any  of  them  by  the  husband. 

Alimony  generally:  See  next  section. 

§  137.  While  an  action  for  divorce  is  pending 
the  court  may,  in  its  discretion,  require  the  hus- 
band to  pay  as  alimony  any  money  necessary  to 
enable  the  wife  to  support  herself  or  her  children, 
or  to  prosecute  or  defend  the  action.  When  the 
husband  willfully  deserts  the  wife,  she  may,  with- 


39  MARRIAGE.  §§  138,  139 

out  applying  for  a  divorce,  maintain  in  the  Supe- 
rior Court  an  action  against  him  for  permanent 
support  and  maintenance  of  herself  or  of  herself 
and  children.  During  the  pendency  of  such  action 
the  court  may,  in  its  discretion,  require  the  hus- 
band to  pay  as  alimony  any  money  necessary  for 
the  prosecution  of  the  action  and  for  support  and 
maintenance,  and  executions  may  issue  therefor 
in  the  discretion  of  the  court.  The  final  judgment 
in  such  action  may  be  enforced  by  the  court  by 
such  order  or  orders  as  in  its  discretion  it  may 
from  time  to  time  deem  necessary,  and  such  or- 
der or  orders  may  be  varied,  altered,  or  revoked 
at  the  discretion  of  the  court.  [Amendment  ap- 
proved April  6,  1880;  Amendments  1880,  4.  In  ef- 
fect immediately.] 
See  sec.  139,  infra. 

§  138,  In  an  action  for  divorce  the  court  may, 
before  or  after  judgment,  give  such  direction  for 
the  custody,  care,  and  education  of  the  children  of 
the  marriage  as  may  seem  necessary  or  proper, 
and  may  at  any  time  vacate  or  modify  the  same. 

Exclusive  control  of  child  without  divorce:  Sees. 
199,  214. 

Avrarding  custody  of  child,  considerations  that 
should  guide  the  court:  See  post,  sec.  246. 

§  139.  Where  a  divorce  is  granted  for  an  of- 
fense of  the  husband,  the  court  may  compel  him 
to  provide  for  the  maintenance  of  the  children 
of  the  marriage,  and  to  make  such  suitable  allow- 
ance to  the  wife  for  her  support,  during  her  life, 
or  for  a  shorter  period,  as  the  court  may  deem 
just,  having  regard  to  the  circumstances  of  the 
parties  respectively;  and  the  court  may,  from 
time  to  time,  modify  its  orders  in  these  respects. 

Compare  with  sec.  148. 


§§  140-146  MARRIAGE.  40 

§  140.  The  court  may  require  the  husband  to 
give  reasonable  security  for  providing  mainte- 
nance or  making  any  payments  required  under 
the  provisions  of  this  chapter,  and  may  enforce 
the  same  by  the  appointment  of  a  receiver,  or  by 
any  other  remedy  applicable  to  the  case. 

§  141.  In  executing  the  five  preceding  sections- 
the  court  must  resort: 

1.  To  the  community  property;  then, 

2.  To  the  separate  property  of  the  husband. 

§  142.  When  the  wife  has  either  a  separate  es- 
tate, or  there  is  community  property  sufficient  to 
give  her  alimony  or  a  proper  support,  the  court, 
in  its  discretion,  may  withhold  any  allowance  to 
her  out  of  the  separate  property  of  the  husband. 

§  143.  The  community  property  and  the  sepa- 
rate property  may  be  subjected  to  the  support  and 
education  of  the  children  in  such  proportions  as 
the  court  deems  just. 

§  144.  When  a  divorce  is  granted  for  the  adul- 
tery of  the  husband,  the  legitimacy  of  children  of 
the  marriage  begotten  of  the  wife  before  the  com- 
mencement of  the  action  is  not  affected. 

Legitimacy  of  children:  See  generally,  sec.  193, 
post.    See,  also,  the  next  section. 

§  145.  When  a  divorce  is  granted  for  the  adul- 
tery of  the  wife,  the  legitimacy  of  children  begot- 
ten of  her  before  the  commission  of  the  adultery 
is  not  affected;  but  the  legitimacy  of  other  chil- 
dren of  the  wife  may  be  determined  by  the  court, 
upon  the  evidence  in  the  case. 

§  146.  In  case  of  the  dissolution  of  the  mar- 
riage by  the  decree  of  a  court  of  competent  juris- 


41  MARRIAGE.  §§  147,  148 

diction,   the  community  property  and  the   home- 
stead shall  be  assij?ned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of 
adultery  or  extreme  cruelty,  the  community  prop- 
erty shall  be  assigned  to  the  respective  parties  in 
such  proportions  as  the  court,  from  all  the  facts 
of  the  case,  and  the  condition  of  the  parties  may 
deem  just. 

2.  If  the  decree  be  rendered  on  any  other 
ground  than  that  of  adultery  or  extreme  cruelty, 
the  community  property  shall  be  equally  divided 
between  the  parties. 

3.  If  a  homestead  has  been  selected  from  the 
community  property,  it  may  be  assigned  to  the 
innocent  party,  either  absolutely,  or  for  a  limited 
period,  subject,  in  the  latter  case,  to  the  future 
disposition  of  the  court,  or  it  may,  in  the  discre- 
tion of  the  court,  be  divided,  or  be  sold  and  the 
proceeds  divided. 

4.  If  a  homestead  has  been  selected  from  the 
separate  property  of  either,  it  shall  be  assigned  to 
the  former  owner  of  such  property,  subject  to  the 
power  of  the  court  to  assign  it  for  a  limited  period 
to  the  innocent  party.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  191.  In  ef- 
fect July  1,  1874.] 

Discretion  of  court:  See  sec.  148. 

§  147.  The  court,  in  rendering  a  decree  of  di- 
vorce, must  make  such  order  for  the  disposition  of 
the  community  property,  and  of  the  homestead,  as 
in  this  chapter  provided,  and  w^henever  necessary 
for  that  purpose,  may  order  a  partition  or  sale  of 
the  properly  and  a  division  or  other  disposition  of 
the  proceeds.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  192.  In  effect  July  1, 
1874.] 

§  148.  The  disposition  of  the  community  prop- 
erty, and  of  the  homestead,  as  above  provided,  is 


§    155  MARRIAGE.  42 

subject  to  revision  on  appeal  in  all  particulars,  in- 
cluding those  wliicli  are  stated  to  be  in  the  discre- 
tion of  the  court.  [Amendment  approved  March 
30,  1874;  Amendments  1878-4,  192.  In  effect  July 
1,  1874.] 

CHAPTER  Hi. 

HUSBAND    AND    WIFE. 

§  155.  Mutual  obligations  of  husband  and  wife. 

§  153.  Rights  of  husband,  as  head  of  family. 

§  157.  In  other  respects  their  interest  separate. 

§  158.  Husband  and  wife  may  make  contracts. 

§  159.  How  far  may  impair  their  legal  obligations. 

§  160.  Consideration    for   agreement   of   separation. 

§  161.  May  be  joint  tenants,  &c. 

§  162.  Separate  property  of  the  wife. 

§  163.  Separate  property  of  the  husband. 

§  164.  Community  property. 

§  165.  Inventory  of  separate  property  of  wife. 

§  166.  Filing  inventory  notice  of  wife's  title. 

§  167.  Wife    not    competent    to    contract    for    payment    of 

money. 

§  168.  Earnings  of  wife  not  liable  for  debts  of  husband. 

§  169.  Earnings    of    wife    when    living    separate,     separate 

property. 

§  170.  Liability   for  debts   of   wife   contracted   before   mar- 
riage. 

§  171.  Wife's  property  not  liable  for  debts  of  the  husband, 

but  liable  for  her  own  debts. 

§  172.  Power  of  the  husband  over  community  property. 

§  173.  Courtesy  and  dower  not  allowed. 

§  174.  Support  of  wife. 

§  175.  Husband  not  liable  when  abandoned  by  wife. 

§  176.  When   wife  must  support  husband. 

§  177.  Rights  of  husband  and  wife  governed  by  what. 

§  178.  Marriage  settlement  contracts,  how  executed. 

§  179.  To  be  acknowledged  and  recorded. 

§  180.  Effect  of  recording. 

§  181.  Minors  may  make  marriage   settlements. 

§  155.  Husband  and  wife  contract  toward  each 
other  obligations  of  mutual  respect,  fidelity,  and 
support. 

Mother  aiding  in  support  of  children:  Sec.  196, 
post. 

Wife's  support  of  husband:  See  infra,  sec.  176. 


43  MARRIAGE.  §§  156-160 

Husband's  support  of  wife:  See  infra,  sees.  174, 
175,  and  ante,  sec.  105,  >Yhere  the  failure  so  to  do 
gives  ground  for  divorce. 

§  156.  The  husband  is  the  head  of  the  family. 
He  may  choose  any  reasonable  place  or  mode  of 
living,  and  the  wife  must  conform  thereto. 

Head  of  family  for  homestead  purposes:  See 
post,  sec.  1261. 

Parent  changing  residence  of  child:  Sec.  213, 
post. 

Husband's  selection  of  dwelling-place,  desertion 
if  wife  does  not  conform  thereto:  Sec.  103. 

§  157.  Xeither  husband  nor  wife  has  any  inter- 
est in  the  property  of  the  other,  but  neither  can  be 
excluded  from  the  other's  dwelling. 

§  158.  Either  husband  or  wife  may  enter  into 
any  engagement  or  transaction  with  the  other,  or 
with  any  other  person,  respecting  property,  which 
either  might  if  unmarried;  subject,  in  transactions 
between  themselves,  to  the  general  rules  which 
control  the  actions  of  persons  occupying  confiden- 
tial relations  with  each  other,  as  defined  by  the 
title  on  Trusts. 

Contracts  for  payment  of  money:  See  sec.  167. 

§  159.  A  husband  and  wife  cannot,  by  any  con- 
tract with  each  other,  alter  their  legal  relations, 
except  as  to  property,  and  except  that  they  may 
agree,  in  writing,  to  an  immediate  separation,  and 
may  mal^e  provision  for  the  support  of  either  of 
them  and  of  their  children  during  such  separa- 
tion. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  193.    In  effect  July  1,  1874.] 

Marriage  settlements:  Sees.  177-181,  post. 

§  160.    The  mutual  consent  of  the  parties  is  a 


§§  161-164  MARRIAGE.  44 

sufficient  consideration  for  such  an  agreement  as 
is  mentioned  in  the  last  section. 

§  161.  A  husband  and  wife  may  hold  property 
as  joint  tenants,  tenants  in  common,  or  as  com- 
munity property. 

§  162.  All  property  of  the  wife,  owned  by  her 
before  marriage,  and  that  acquired  afterward  by 
gift,  bequest,  devise,  or  descent,  with  the  rents,  is- 
sues, and  profits  thereof,  is  her  separate  property. 
The  wife  may,  without  the  consent  of  her  hus- 
band,  convey  her  separate  property. 

§  163.  All  property  owned  by  the  husband  be- 
fore marriage,  and  that  acquired  afterward  by 
gift,  bequest,  devise,  or  descent,  with  the  rents, 
issues,  and  profits  thereof,  is  his  separate  prop- 
erty. 

Community  property:  See  the  definition,  sec. 
687. 

Community  property  liable  for  what  debts:  Sec. 
167. 

Husband's  control  over  community  property: 
Sec.  172. 

Descent  of  community  property:  Sees.  1401, 
3402,  post. 

§  164.  All  other  property  acquired  after  mar- 
riage by  either  husband  or  wife,  or  both,  is  com- 
munity property;  but  whenever  any  property  is 
conveyed  to  a  married  woman  by  an  instrument 
in  writing,  the  presumption  is  that  the  title  is 
thereby  vested  in  her  as  her  separate  property. 
And  in  case  the  conveyance  be  to  such  married 
woman  and  to  her  husband,  or  to  her  and  any 
other  person,  the  presumption  is  that  the  mar- 
ried woman  takes  the  part  conveyed  to  her,  as 
tenant  in  common,  unless  a  different  intention  is 
expressed  in  the  instrument,  and  the  presumption 


45  MARRIAGE.  §§  165-167 

in  this  section  mentioned  is  conclusive  in  favor  of 
a  purchaser  or  incumbrancer  in  good  faith  and 
for  a  valuable  consideration.  And  in  cases  where 
married  women  have  conveyed  or  shall  hereafter 
convey,  real  property  which  they  acquired  prior 
to  May  nineteenth,  eighteen  hundred  and  eighty- 
nine,  the  husbands,  or  their  heirs  or  assigns,  of 
such  married  women,  shall  be  barred  from  com- 
mencing or  maintaining  any  action  to  show  that 
said  real  property  was  community  property,  or 
to  recover  said  real  property,  as  follows:  As  to 
conveyances  heretofore  made  from  and  after  one 
year  from  the  date  of  the  taking  effect  of  this 
Act;  and  as  to  conveyances  hereafter  made  from 
and  after  one  year  from  the  filing  for  record  in 
the  Recorder's  office  of  such  conveyances  respec- 
tively.    [Approved  March  4,  1897,  c.  72.] 

This  section  vras  also  amended  in  1893,  Stats. 
1893,  p.  71. 

§  165.  A  full  and  complete  inventory  of  the 
separate  personal  property  of  the  wife  may  be 
made  out  and  signed  by  her,  acknowledged  or 
proved  in  the  manner  required  by  law  for  the  ac- 
knowledgment or  proof  of  a  grant  of  real  prop- 
erty by  an  unmarried  woman,  and  recorded  in  the 
office  of  the  recorder  of  the  county  in  which  the 
parties  reside. 

§  166.  The  filing  of  the  inventory  in  the  re- 
corder's office  is  notice  and  prima  facie  evidence 
of  the  title  of  the  wife.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  193.  In  ef- 
fect July  1,  1874.] 

§  167.  The  property  of  the  community  is  not 
liable  for  the  contracts  of  the  wife,  made  after 
marriage,  unless  secured  by  a  pledge  or  mortgage 
thereof  executed    by  the    husband.     [Amendment 


§§  168-172  MARRIAGE.  46 

api)roved  March  30,  1874;  Amendments  1873-4, 
193.    In  effect  July  1,  1874.] 

Debts  of  wife:  See  sees.  170,  171,  174. 

Community  property  is  liable  for  husband's 
debts:  Sec.  172. 

Necessaries  furnished  wife:  See  sec,  174. 

§  168.  The  earnings  of  the  wife  are  not  liable 
for  the  debts  of  the  husband. 

§  169.  The  earnings  and  accumulations  of  the 
wife,  and  of  her  minor  children  living  with  her 
or  in  her  custody,  while  she  is  living  separate 
from  her  husband,  are  the  separate  property  of  the 
wife. 

Sole  traders.— As  to  married  women  becoming 
sole  traders,  and  their  rights  and  liabilities  as 
such,  see  Code  Civ.  Proc,  sees,  1811-1821,  in- 
elusive. 

§  170.  The  separate  property  of  the  husband  is 
not  liable  for  the  debts  of  the  wife  contracted  be- 
fore the  marriage. 

§  171.  The  separate  property  of  the  wife  is  not 
liable  for  the  debts  of  her  husband,  but  is  liable 
for  her  own  debts,  contracted  before  or  after 
marriage. 

§  172.  The  husband  has  the  management  and 
control  of  the  community  property,  with  the  lil^e 
absolute  power  of  disposition,  other  than  testa- 
mentary, as  he  has  of  his  separate  estate;  pro- 
vided, however,  that  he  cannot  mal^e  a  gift  of 
such  community  property,  or  convey  the  same 
without  a  valuable  consideration,  unless  the  wife, 
in  writing,  consent  thereto.  [Amendment  approv- 
ed March  31,  1891;  Stats.  1891,  p.  425.] 

Testamentary  control  over  community  property: 
See  sees.  1401  and  1402,  post,  which  prescribe  the 


47  MARRIAGE.  §§  173-176 

ooiirse  of  descent  of  common  property,  and  limit 
the  power  of  testamentary  disposition  over  the 
same. 

Community  property  generally:  See  supra,  sec. 
164. 

Dissolution  of  the  community  by  divorce:  See 
sees.  147,  148. 

§  173.  Xo  estate  is  allowed  the  husband  as  ten- 
ant by  courtesy  upon  the  death  of  his  wife,  nor  is 
any  estate  in  dower  allotted  to  the  wife  upon  the 
death  of  her  husband. 

§  174.  If  the  husband  neglect  to  make  ade- 
quate provision  for  the  support  of  his  wife,  except 
in  the  cases  mentioned  in  the  next  section,  any 
other  person  may,  in  good  faith,  supply  her  with 
articles  necessary  for  her  support,  and  recover  the 
reasonable  value  thereof  from  the  husband. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 187.3-4,  193.    In  effect  July  1,  1874.] 

§  175.  A  husband  abandoned  by  his  wife  is 
not  liable  for  her  support  until  she  offers  to  re- 
turn, unless  she  was  justified,  by  his  misconduct, 
in  abandoning  him;  nor  is  he  liable  for  her  sup- 
port when  she  is  living  separate  from  him,  by 
agreement,  unless  such  support  is  stipulated  in 
the  agreement.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  193.  In  effect  July  1, 
1874.] 

§  176.  The  wife  must  support  the  husband, 
when  he  has  not  deserted  her,  out  of  her  separate 
property,  when  he  has  no  separate  property,  and 
there  is  no  community  property,  and  he  is  unable, 
from  infirmity,  to  support  himself.  [Amendment 
approved  March  30.  1874;  Amendments  1873-4. 
194.    In  effect  July  1,  1874.] 


§§  177-181  MARRIAGE.  48 

Mutual  obligations  of  support:  See  sec.  155. 

§  177.  The  property  rights  of  husband  and 
wife  are  governed  by  this  chapter,  unless  there  is 
a  marriage  settlement  containing  stipulations  con- 
trary thereto. 

§  178.  All  contracts  for  marriage  settlements 
must  be  in  writing,  and  executed  and  aclcnowl- 
edged  or  proved  in  like  manner  as  a  grant  of 
land  is  required  to  be  executed  and  aclinowledged 
or  proved. 

§  179.  When  such  contract  is  acknowledged  or 
proved,  it  must  be  recorded  in  the  office  of  the  re- 
corder of  every  county  in  which  any  real  estate 
may  be  situated  which  is  granted  or  affected  by 
such  contract. 

§  180.  The  recording  or  nonrecording  of  such 
contract  has  a  like  effect  as  the  recording  or  non- 
recording  of  a  grant  of  real  property. 

§  181.  A  minor  capable  of  contracting  mar- 
riage may  make  a  valid  marriage  settlement. 


49  PARENT  AND  CHILD.  §  193 

TITLE   II. 

PARENT   AND    CHILD. 


CHAPTER  I. 

CHILDREN   BY   BIRTH. 

§  193.     Legitimacy  of  children  born  in  wedlock. 

§  194.     Legitimacy  of  children  born  out  of  wedlock. 

§  195.    Who  may  dispute  the  legitimacy  of  a  child. 

§  196.  Obligation  of  parents  for  the  support  and  education 
of  their  children. 

§  197.     Custody  of  legitimate  child. 

§  198.  Husband  and  wife  living  separate,  neither  to  have 
superior  right  to  custody  of  children. 

S  199.  When  husband  or  wife  may  bring  action  for  the  ex- 
clusive control  of  children.     Decree  in  such  cases. 

§  200.     Custody  of  an  illegitimate  child. 

§  201.    Allowance  to  parent. 

S  202.    Parent  cannot  control  the  property  of  child. 

§  203.    Remedy  for  parental   abuse. 

§  2U4.    When  parental  authority  ceases. 

§  205.  Remedy  when  a  parent  dies  without  providing  for 
the  support  of  his  child. 

§  206.  Reciprocal  duties  of  parents  and  children  in  main- 
taining each  other. 

§  207.  When  a  parent  is  liable  for  necessaries  supplied  to 
a  child. 

§  208.  When  a  parent  is  not  liable  for  support  furnished 
his  child. 

§  209.  Husband  not  bound  for  the  support  of  his  wife's 
children  by  a  former  marriage. 

§  210.     Compensation  and  support  of  adult  child. 

§  211.  Parent  may  relinquish  services  and  custody  of 
child. 

§  212.    Wages  of  minors. 

§  213.     Right  of  parent  to  determine  the  residence  of  child. 

§  214.  \V  iie  in  certain  cases  may  obtain  custody  of  minor 
children. 

§  215.     Child  legitimized  by  marriage  of  parents. 

§  193.    All  children  born   in  wedlock   are  pre- 
sumed to  be  legitimate. 

Civ.    Code— 5. 


§§  194-196  PARENT    AND    CHILD.  50 

Legitimacy  of  cliildren  of  nullified  marriage:  See 
ante,  sec.  84. 

Legitimacy  in  cases  of  adultery:  See  ante,  sees. 
144,  145. 

Rebutting  presumption  of  legitimacy:  Sec.  195, 
infra. 

Legitimating  children  by  marriage  of  parents: 
See  sec.  215,  post. 

Father  legitimating  child  by  acknowledging  it: 
Sec.  2.30;  and  compare  sec.  1387,  post. 

Illegitimate's  earnings:  See  sec.  200. 

Illegitimates,  heirs  to  whom:  Sec.  1387,  post. 
Mother  succeeds  to  estate  of  illegitimate:  Sec. 
1388,  post. 

§  194.  All  children  of  a  woman  who  has  been 
married,  born  within  ten  months  after  the  disso- 
lution of  the  marriage,  are  presumed  to  be  legiti- 
mate children  of  that  marriage.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4,  194. 
In  effect  July  1,  1874.] 

§  195.  The  presumption  of  legitimacy  can  be 
disputed  only  by  the  husband  or  wife,  or  the  de- 
scendant of  one  or  both  of  them.  Illegitimacy,  in 
such  case,  may  be  proved  lilie  any  other  fact. 

§  196.  The  parent  entitled  to  the  custody  of  a 
child  must  give  him  support  and  education  suita- 
ble to  his  cij'cumstances.  If  the  support  and  edu- 
cation which  the  father  of  a  legitimate  child  is 
able  to  give  are  inadequate,  the  mother  must  as- 
sist him  to  the  extent  of  her  ability. 

Action  to  enforce  parental  duty:  Sec.  203,  infra. 

Third  person  supplying  necessaries:  Sees.  207, 
208,  infra. 

Willful  failure  to  support  child  is  a  misde- 
meanor: Pen.  Code,  sec.  270. 


51  PARENT  AND  CHILD.  §§  197-199 

Deserting  cliild  is  a  felony:  Pen.  Code,  sec.  271. 

Supporting  poor  relatives:  See  sec.  206,  infra. 

Illegitimate  child. — The  mother  is  entitled  to  the 
custody  of  an  illegitimate  unmarried  minor:  Sec. 
200. 

Injury  to  child,  action  for:  See  Code  Civ.  Proc, 
sec.  376. 

§  197.  The  father  of  a  legitimate  unmarried 
minor  child  is  entitled  to  its  custody,  services,  and 
earnings;  but  he  cannot  transfer  such  custody  or 
services  to  any  other  person,  except  the  mother, 
without  her  vrritten  consent,  unless  she  has  de- 
serted him,  or  is  living  separate  from  him  by 
agreement.  If  the  father  be  dead,  or  be  unable, 
or  refuse  to  tal^e  the  custody,  or  has  abandoned 
his  family,  the  mother  is  entitled  thereto. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  194.    In  effect  July  1,  1874.] 

Relinquishing  right  to  child's  earnings:  Sec.  211, 
infra. 

Property  of  child,  parent,  as  such,  has  no  con- 
trol of:  Sec.  202,  infra. 

Guardian,  appointment  of:  See  post,  sees.  241  et 
seq. 

§  198.  The  husband  and  father,  as  such,  has 
no  rights  superior  to  those  of  the  wife  and  mother, 
in  regard  to  the  care,  custody,  education,  and  con- 
trol of  the  children  of  the  marriage,  while  such 
husband  and  wife  live  separate  and  apart  from 
each  other. 

Custody  of  child  in  divorce  causes:  See  ante,  sec. 
138. 

§  199.  Without  application  for  a  divorce,  the 
husband  or  the  wife  may  bring  an  action  for  the 
exclusive  control  of  the  children  of  the  marriage; 
and  the  court  may,  during  the  pendency  of  such 
action,  or  at  the  final  hearing  thereof,  or  after- 


§§  200-203  PARENT  AND  CHILD.  52 

ward,  make  such  order  or  decree  in  regard  to  the 
support,  care,  custody,  education,  and  control  of 
the  children  of  the  marriage,  as  may  be  just,  and 
in  accordance  with  the  natural  rights  of  the  par- 
ents and  the  best  interests  of  the  children,  and 
may  at  any  time  thereafter  amend,  vary,  or  mod- 
ify such  order  or  decree,  as  the  natural  rights  and 
the  interests  of  the  parties,  including  the  children, 
may  require. 

Compare  with  sec.  214,  infra. 

Control  of  children  pending  divorce  proceedings: 
See  ante,  sec.  138. 

Awarding  custody  of  child.— Considerations  that 
should  govern  the  court:  Sec.  246,  post. 

§  200.  The  mother  of  an  illegitimate  unmar- 
ried minor  is  entitled  to  its  custody,  services,  and 
earnings. 

Mother  the  heir  of  illegitimate  child:  Sec.  1888, 
post. 

Duty  to  support  child:  Sec.  190. 

§  201.  The  proper  court  may  direct  an  allow- 
ance to  be  made  to  the  parent  of  a  child,  out  of  its 
property,  for  its  past  or  future  support  and  educa- 
tion, on  such  conditions  as  may  be  proper,  when- 
ever such  direction  is  for  its  benefit. 

§  202.  The  parent,  as  such,  has  no  control  over 
the  property  of  the  child. 

Same  principle:    Sec.  242,  post. 

Guardian  of  minors  estate:  See  sees.  241,  post,  et 
seq. 

§  203.  The  abuse  of  parental  authority  is  the 
subject  of  judicial  cognizance  in  a  civil  action 
brought  by  the  child,  or  by  its  relative  within  the 
third  degree,  or  by  the  supervisors  of  the  county 
where  the  child  resides;  and  when  the  abuse  is 
established,  the  child  may  be  freed  from  the  do- 


53  PARENT   AND    CHILD.  §§  204-207 

minion  of  the  parent,  and  tlie  duty  of  support  and 
education  enforced. 

Parental  duty:  See  sec.  196,  ante. 

Omission  to  supply  a  child  with  necessaries  is  a 
misdemeanor,  and  desertion  is  punished  by  im- 
prisonment: Pen.  Code,  sees.  270,  271. 

§  204.    The  authority  of  a  parent  ceases: 

1.  Upon  the  appointment,  by  a  court,  of  a 
guardian  of  the  person  of  a  child; 

2.  Upon  the  marriage  of  the  child;  or, 

3.  Upon  its   attaining  majority. 

§  205.  If  a  parent  chargeable  with  the  support 
of  a  child  dies,  leaving  it  chargeable  to  the  coun- 
ty, and  leaving  an  estate  sufficient  for  its  sup- 
port, the  supervisors  of  the  county  may  claim  pro- 
vision for  its  support  from  the  parent's  estate  by 
civil  action,  and  for  this  purpose  may  have  the 
same  remedies  as  any  creditors  against  that  es- 
tate, and  against  the  heirs,  devisees,  and  next  of 
l^in  of  the  parent. 

§  206.  It  is  the  duty  of  the  father,  the  mother, 
and  the  children  of  any  poor  person  who  is  un- 
able to  maintain  himself  by  worli,  to  maintain 
such  person  to  the  extent  of  their  ability.  The 
promise  of  an  adult  child  to  pay  for  necessaries 
previously  furnished  to  such  parent  is  binding. 

Mother  supporting  children:  Sec.  197. 

Wife  supporting  husband:  Sec.  176. 

§  207.  If  a  parent  neglects  to  provide  articles 
necessary  for  his  child  who  is  under  his  charge, 
according  to  his  circumstances,  a  third  person 
may  in  good  faith  supply  such  necessaries,  and 
recover  the  reasonable  value  thereof  from  the 
parent. 

Infant  liable  on  contract  for  necessaries:  See 
sec.  36,  ante. 


§§  208-213  PARENT   AND    CHILD.  54 

§  208.  A  parent  is  not  bound  to  compensate 
the  other  parent,  or  a  rehitive,  for  the  voluntary 
support  of  his  child,  without  an  agreement  for 
compensation,  nor  to  compensate  a  stranger  for 
the  support  of  a  child  who  has  abandoned  the 
parent  without  just  cause. 

§  209.  A  husband  is  not  bound  to  maintain  his 
wife's  children  by  a  former  husband;  but  if  he  re- 
ceives them  into  his  family  and  supports  them,  it 
is  presumed  that  he  does  so  as  a  parent;  and, 
where  such  is  the  case,  they  are  not  liable  to  him 
for  their  support,  nor  he  to  them  for  their  ser- 
vices. 

§  210.  AYhere  a  child,  after  attaining  majority, 
continues  to  serve  and  to  be  stipported  by  the  par- 
ent, neither  party  is  entitled  to  compensation,  in 
the  absence  of  an  agreement  therefor. 

§  211.  The  parent,  whether  solvent  or  insol- 
vent, may  relinquish  to  the  child  the  right  of  con- 
trolling him  and  receiving  his  earnings.  Aban- 
donment by  the  parent  is  presumptive  evidence  of 
such  relinquishment. 

§  212.  The  wages  of  a  minor  employed  in  ser- 
vice may  be  paid  to  him  until  the  parent  or 
guardian  entitled  thereto  gives  the  employer  no- 
tice that  he  claims  such  wages.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  194. 
In  etfect  July  1,  1874.] 

§  213.  A  parent  entitled  to  the  custody  of  a 
child  has  a  right  to  change  his  residence,  subject 
to  the  power  of  the  proper  court  to  restrain  a  re- 
moval which  would  prejudice  the  rights  or  wel- 
fare of  the  child. 

Residence,  husband's  right  to  change:  See  ante, 
sec.  15G. 


55  PARENT  AND  CHILD.  §§  214-222 

§  214.  When  a  liiisbaud  and  ^yife  live  in  a 
state  of  separation,  witliout  being  divorced,  any 
court  of  competent  jurisdiction,  upon  application 
of  eitlier,  if  an  inhabitant  of  this  State,  may  in- 
quire into  the  custody  of  any  unmarried  minor 
cliild  of  the  marriage,  and  may  award  the  cus- 
tody of  such  child  to  either,  for  such  time  and  un- 
der such  regulations  as  the  case  may  require.  The 
decision  of  the  court  must  be  guided  by  the  rules 
prescribed  in  section  246. 

See  Act  of  March  7,  1874,  relative  to  orphans 
and  abandoned  children,  Stats  1873-4,  p.  297. 

Custody  of  child  without  divorce  of  parents:  See 
ante,  sec.  199. 

Custody  of  child  pending  divorce  proceedings: 
See  sec.  138. 

§  215.  A  child  born  before  wedlock  becomes  le- 
gitimate by  the  subsequent  marriage  of  its  par- 
ents. [New  section  approved  March  30,  1874; 
Amendments  1873-4,  195.    In  effect  July  1,  1874.] 

CHAPTER  II. 

ADOPTION. 

§  221.  Child  may  be  adopted. 

§  222.  Who  may  adopt. 

§  223.  Consent  of  wife  necessary. 

§  224.  Consent  of  child's  parents. 

§  225.  Consent  of  child. 

§  226.  Proceedings  on  adoption. 

§  227.  Judge's  order. 

§  228.  Effect  of  adoption. 

§  229.  Effect  of  former  relations  of  child. 

§  230.  Adoption  of  illegitimate  child. 

§  221.  Any  minor  child  may  be  adopted  by  any 
adult  person,  in  the  cases  and  subject  to  the  rules 
prescribed  in  this  chapter. 

§  222.  The  person  adopting  a  child  must  be  at 
least   ten  years    older  than    the   person    adopted. 


§§  223,  224  PARENT  AND  CHILD.  56 

[Amendmeut  approved  March    30,  1874;    Amend- 
ments 1873-4,  195.    In  effect  July  1,  1874.] 

§  223.  A  married  man,  not  lawfully  separated 
from  his  wife,  cannot  adopt  a  child  without  the 
consent  of  his  wife;  nor  can  a  married  woman, 
not  thus  separated  from  her  husband,  without  his 
consent,  provided  the  husband  or  wife,  not  con- 
senting, is  capable  of  gi"^ing-  such  consent. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  195.    In  effect  July  1,  1874.] 

§  224.  A  legitimate  child  caunot  be  adopted 
without  the  consent  of  its  parents,  if  living;  nor 
an  illegitimate  child  without  the  consent  of  its 
mother,  if  living;  except  the  consent  is  not  neces- 
sary from  a  father  or  mother  deprived  of  civil 
rights,  or  adjudged  guilty  of  adultery  or  of  cruel- 
ty, and  for  either  cause  divorced,  or  adjtidged  to 
be  an  habitual  drunkard,  or  who  has  been  judi- 
cially deprived  of  the  custody  of  the  child  on  ac- 
count of  cruelty  or  neglect;  neither  is  the  consent 
of  any  one  necessary  in  case  of  any  abandoned 
child;  provided,  however,  that  where  any  such 
child,  being  a  half -orphan,  and  kept  and  main- 
tained within  any  orphan  asylum  in  this  State  for 
more  than  two  years,  may  be  adopted  with  the 
consent  of  the  managers  of  such  orphans'  home 
without  the  consent  of  tlie  parent,  unless  such 
parent  has  paid  toward  the  expenses  of  mainte- 
nance of  such  half- orphan  at  least  a  reasonable 
sum  during  the  said  time,  if  able  so  to  do;  and 
where  the  parent  is  a  nonresident  of  this  State, 
such  child  may  be  adopted  with  the  consent  of  the 
managers  of  such  home,  whenever  it  has  been 
left  by  its  parent  in  such  home  for  more  than  one 
year,  whether  the  parent  has  contributed  any- 
thing to  its  support  or  not,  and  the  consent  of  the 
parent  of  such  half -orphan  is  not  necessary  to  its 


57  PARENT  AND  CHILD.  §§  225-228 

adoption,  wlieuever  the  managers  of  the  home  are 
authorized  to  give  such  consent,  as  herein  pro- 
vided. [Amendment  approved  March  9,  1895; 
Stats.  1895,  p.  36.    In  effect  immediately.] 

§  225.  The  consent  of  a  child,  if  over  the  age 
of  twelve  years,  is  necessary  to  its  adoption. 

§  226.  The  person  adopting  a  child,  and  the 
child  adopted,  and  the  other  persons,  if  within  or 
residents  of  this  State,  whose  consent  is  neces- 
sary, must  appear  before  the  judge  of  the  Supe- 
rior Court  of  the  county  where  the  person  adopt- 
ing resides,  and  the  necessary  consent  must  there- 
upon be  signed  and  an  agreement  be  executed  by 
the  person  adopting,  to  the  effect  that  the  child 
shall  be  adopted  and  treated  in  all  respects  as  his 
own  lawful  child  should  be  treated.  If  the  per- 
sons whose  consent  is  necessary  are  not  within 
or  are  not  residents  of  this  State,  then  their  writ- 
ten consent,  duly  proved  or  aelvuowledged,  accord- 
ing to  sections  eleven  hundred  and  eighty-two  and 
eleven  hundred  and  eighty-three  of  this  Code, 
shall  be  filed  in  said  Superior  Court  at  the  time  of 
the  application  for  adoption.  [Amendment  ap- 
proved April  6,  1880;  Amendments  1880,  4.  In  ef- 
fect immediately.] 

§  227.  The  judge  must  examine  all  persons  ap- 
pearing before  him  pursuant  to  the  last  section, 
each  separately,  and  if  satisfied  that  the  interests 
of  the  child  will  be  promoted  by  the  adoption,  he 
must  make  an  order  declaring  that  the  child  shall 
thenceforth  be  regarded  and  treated  in  all  respects 
as  the  child  of  the  person  adopting. 

§  228.  A  child,  when  adopted,  may  take  the 
family  name  of  the  person  adopting.  After  adop- 
tion, the  two  shall  sustain  toward  each  other  the 
legal  relation  of  parent  and  child,  and  have  all  the 


§§  229,  230  GUARDIAN   AND   WARD.  58 

rights  and  be  subject  to  all  the  duties  of  that  re- 
lation. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  195.    In  effect  July  1,  1874.] 

§  229.  The  parents  of  an  adopted  child  are, 
from  tlie  time  of  tlie  adoption,  relieved  of  all  par- 
ental duties  toward,  and  all  responsibility  for, 
the  child  so  adopted,  and  have  no  right  over  it. 

§  230.  The  father  of  an  illegitimate  child,  by 
publicly  aclinowledging  it  as  his  own,  receiving 
it  as  such,  with  the  consent  of  his  wife,  if  he  is 
married,  into  his  family,  and  otherwise  treating 
it  as  if  it  were  a  legitimate  child,  thereby  adopts 
it  as  sucli;  and  such  child  is  thereupon  deemed 
for  all  purposes  legitimate  from  the  time  of  its 
birth.  The  foregoing  provisions  of  this  chapter 
do  not  applj^  to  such  an  adoption. 

TITLE  III. 

GUARDIAN  AND  WARD. 

§  236.  Guardian,   what. 

§  237.  Ward,   what. 

§  238.  Kind?  of  guardians. 

§  239.  General  guardian,  what. 

§  240.  Special  guardian,  what. 

§  241.  Appointment  by  parent. 

§  242.  No  person  guardian  of  estate  without  appointment. 

§  243,  Appointment  by  court. 

§  244.  Same. 

§  245.  Jurisdiction.  * 

§  246.  Rules  for  awarding  custody  of  minor. 

§  247.  Powers  of  guardian  appointed  by  court. 

§  248.  Duties  of  guardian  of  the  person. 

§  249.  Duties   of  guardian   of  estate. 

§  250.  Relation    confidential. 

§  251.  Guardian  under  direction  of  court. 

§  252.  Death   of  a   joint   guardian. 

§  253.  Removal  of  guardian. 

§  254.  Guardian  appointed  by  parent,  how  superseded. 

§  255.  Guardian  appointed  by  court,  how  superseded. 

§  256.  Released  by  ward. 

§  257.  Guardian's    discharge. 

§  258.  Insane  persons. 


59  GUARDIAN   AND   WARD.  §§  236-242 

§  236.  A  guardiau  is  a  person  appointed  to  take 
care  of  the  person  or  property  of  another. 

§  237.  The  person  over  whom  or  over  whose 
property  a  guardian  is  appointed,  is  called  his 
ward. 

ij  238.    Guardians  are  either: 

1.  General;  or, 

2.  Special. 

Testamentary  guardians:  See  sec.  241. 
Guardians  ad  litem:  See  Code  Civ.   Proc,   sees. 
372,  373. 

§  239.  A  general  guardiau  is  a  guardian  of  the 
person  or  of  all  the  property  of  the  ward  within 
this  State,  or  of  both. 

§  240.    Every  other  is  a  special  guardian. 

§  241.  A  guardian  of  the  person  or  estate,  or  of 
both,  of  a  child  born,  or  liliely  to  be  born,  may  be 
appointed  by  will  or  by  deed,  to  take  effect  upon 
the  death  of  the  parent  appointing: 

1.  If  the  child  be  legitimate,  by  the  father,  with 
the  written  consent  of  the  mother;  or  by  either 
parent,  if  the  other  be  dead  or  incapable  of  con- 
sent; 

2.  If  the  child  be  illegitimate,  by  the  mother. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  195.    In  effect  July  1,  1874.] 

Code  Civ.  Proc,  sec.  1747. 

Bond  of  testamentary  guardian:  Code  Civ. 
Proc,  sec.  1758. 

§  242.  Xo  person,  whether  a  parent  or  other, 
wise,  has  any  poAver  as  guardian  of  property,  ex- 
cept by  appointment  as  herein  after  provided. 

Same  principle  as  expressed  in  sec  202,  ante. 
And  as  to  power  of  guardian  appointed  by  the 
court,  see  sec  247,  infra. 


§§  243-243  GUARDIAN   AND   WARD.  60 

§  243.  A  guardian  of  the  person  or  property,  or 
both,  of  a  person  residing  in  this  State,  who  is  a 
minor,  or  of  unsound  mind,  may  be  appointed  in 
all  cases,  other  than  those  named  in  section  two 
hundred  and  forty-one,  by  the  Superior  Court,  as 
provided  in  the  Code  of  Civil  Procedure.  [Amend- 
ment approved  April  6,  1880;  Amendments  1880, 
4.    In  effect  immediately.] 

Judicial  appointment  of  guardian  of  minor:  See 
Code  Civ.  Proc,  sec.  1747. 

Judicial  appointment  of  guardian  of  insane  or 
incompetent  persons:  See  Code  Civ.  Proc,  sec. 
1763. 

Act  providiing  for  appointment  of  guardian  of 
orphans:    See  post.  Appendix,  p.  TiG. 

§  244.  A  guardian  of  the  property  within  this 
State  of  a  person  not  residing  therein,  who  is  a 
minor,  or  of  unsound  mind,  may  be  appointed  by 
the  Superior  Court.  [Amendment  approved  April 
6,  1880;  Amendments  1880,  4.  In  effect  immedi- 
ately.] 

Nonresident  wards,  appointment  of  guardian: 
See  Code  Civ.  Proc,  sees.  1793  et  seq. 

§  245.  In  all  cases  the  court  making  the  ap- 
pointment of  a  guardian  has  exclusive  jurisdiction 
to  control  him. 

Code  Civ.  Proc,  sec  1771. 

§  246.  In  awarding  the  custody  of  a  minor,  or 
in  appointing  a  general  guardian,  the  court  or  of- 
ficer is  to  be  guided  by  the  following  consider- 
ations: 

1.  By  what  appears  to  be  for  the  best  interest 
of  the  child  in  respect  to  its  temporal  and  its 
mental  and  moral  welfare,  and  if  the  child  be  of 
a  sufficient  age  to  form  an  intelligent  preference, 
the  court  may  consider  that  preference  in  deter- 
mining the  question. 


61  GUARDIAN  AND  WARD.  §§  247-249 

2,  As  between  parents  adversely  claiming  the 
custody  or  guardianship,  neither  parent  is  entitled 
to  it  as  of  right;  but  other  things  being  equal,  if 
the  child  be  of  tender  years,  it  should  be  given  to 
the  mother;  if  it  be  of  an  age  to  require  education 
and  preparation  for  labor  or  business,  then  to  the 
father. 

3.  Of  two  persons  equally  entitled  to  the  cus- 
tody in  other  respects,  preference  is  to  be  given 
as  follows: 

1.  To  a  parent; 

2.  To  one  who  was  indicated  by  the  wishes  of  a 
deceased  parent; 

3.  To  one  who  already  stands  in  the  position  of 
a  trustee  of  a  fund  to  be  applied  to  the  child's 
support; 

4.  To  a  relative.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  196.  In  effect  July 
1,  1874.] 

Custody  of  children  generally,  pending  divorce: 
See  sec.  138;  without  divorce,  see  sees.  199,  214. 

Custody  of  child  where  parents  separated:  See 
ante,  sec.  214. 

§  247.  A  guardian  appointed  by  a  court  has 
power  over  the  person  and  property  of  the  ward, 
unless  otherwise  ordered. 

Property  of  ward,  control  over:  See  sec.  242. 

§  248.  A  guardian  of  the  person  is  charged 
with  the  custody  of  the  ward,  and  must  look  to 
his  support,  health,  and  education.  He  may  fix 
the  residence  of  the  ward  at  any  place  within  the 
State,  but  not  elsewhere,  without  permission  of 
the  court. 

Compare  sec.  251. 

§  249.    A  guardian  of  the  property  must  keep 
safely  the  property  of  his  ward.    He  must  not  per- 
Civ.   Code— 6 


§§  250-253  GUARDIAN   AND   WARD.  62 

mit  any  unnecessary  waste  or  destruction  of  the 
real  property,  nor  make  any  sale  of  such  property 
without  the  order  of  the  Superior  Court,  but  must, 
so  far  as  it  is  in  his  poAver,  maintain  the  same, 
with  its  buildings  and  appurtenances,  out  of  the 
income  or  other  property  of  the  estate,  and  deliver 
it  to  the  ward,  at  the  close  of  his  guardianship,  in 
as  good  condition  as  he  received  it.  [Amendment 
approved  April  6,  1880;  Amendments  1880,  5.  In 
effect  immediately.] 

Sale  of  ward's  estate:  See  Code  Civ.  Proc,  sees. 
1777  et  seq. 

Guardian  using  principal  as  well  as  income:  See 
Code  Civ.  Proc,  sec.  1770. 

§  250.  The  relation  of  guardian  and  ward  is 
confidential,  and  is  subject  to  the  provisions  of  the 
title  on  Trust. 

Trusts:  See  post,  sees.  2215  et  seq. 

§  251.  In  the  management  and  disposition  of 
the  person  or  property  committed  -to  him,  a  guard- 
ian may  be  regulated  and  controlled  by  the  court. 

Residence  of  ward:  See  sec.  248,  ante. 

§  252.  On  the  death  of  one  of  two  or  more 
.ioint  guardians,  the  power  continues  to  the  sur- 
vivor until  a  further  appointment  is  made  by  the 
court. 

Survival  of  trust:  See  sec.  2288,  post. 

§  253.  A  guardian  may  be  removed  by  the  Su- 
perior Court  for  any  of  the  following  causes: 

1.  For  abuse  of  his  trust; 

2.  For  continued  failure  to  perform  its  duties; 

3.  For  incapacity  to  perform  its  duties; 

4.  For  gross  immorality; 

5.  For  having  an  interest  adverse  to  the  faith- 
ful performance  of  his  duties; 

C.    For  removal  from  the  State; 


63  GUARDIAN   AND   WARD.  §§  254-258 

7.  In  the  case  of  a  guardian  of  the  property,  for 
insolvency;  or, 

S.  When  it  is  no  longer  proper  that  the  ward 
should  be  under  guardianship.  [Amendment  ap- 
proved April  6,  1880;  Amendments  1880,  5.  In  ef- 
fect immediately.] 

§  254.  The  power  of  a  guardian  appointed  by 
a  parent  is  superseded: 

1.  By  his  removal,  as  provided  by  section  253; 

2.  By  the  solemnized  marriage  of  the  ward;  or, 

3.  By  the  ward's  attaining  majority. 
Marriage     of     ward     terminates     guardianship: 

Code  Civ.  Proc,  sec.  1802. 

§  255.  The  power  of  a  guardian  appointed  by 
a  court  is  suspended  only: 

1.  By  order  of  the  court;  or, 

2.  If  the  appointment  was  made  solely  because 
of  the  ward's  minority,  by  his  attaining  majority; 
or, 

3.  The  guardianship  over  the  person  of  the 
ward,  by  the  marriage  of  the  ward.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4, 
197.    In  effect  July  1,  1874.] 

Marriage  of  ward  terminates  guardianship:  Code 
Civ.  Proc,  sec.  1802. 

§  256.  After  a  ward  has  come  to  his  major- 
ity, he  may  settle  accounts  with  his  guardian,  and 
give  him  a  release,  which  is  valid  if  obtained  fair- 
ly and  without  undue  influence. 

§  257.  A  guardian  appointed  by  a  court  is  not 
entitled  to  his  discharge  until  one  year  after  the 
ward's  majority. 

Pvesignation  of  guardian:  See  Code  Civ.  Proc, 
sec.  1801. 

§  258.  A  person  of  unsound  mind  may  be  plac- 
ed in  an  asylum  for  such  persons,  upon  the  order 


§  264  MASTER  AND  SERVANT,  64 

of  the  Superior  Court  of  the  county  in  which  he 
resides,  as  follows: 

1.  The  court  must  be  satisfied,  upon  examina- 
tion in  open  court  and  in  the  presence  of  such  per- 
son, from  the  testimony  of  two  reputable  physi- 
cians, that  such  person  is  of  unsound  mind,  and 
unfit  to  be  at  large; 

2.  After  the  order  is  granted,  the  person  alleg- 
ed to  be  of  unsound  mind,  his  or  her  husband  or 
wife,  or  relative  to  the  third  degree,  or  any  citi- 
zen, may  demand  an  investigation  before  a  jury, 
which  must  be  conducted  in  all  respects  as  under 
an  inquisition  of  lunacy. 

As  to  appointment,  rights,  and  powers  of  guard- 
ian, see  Code  Civ.  Proc,  sees.  1747-1809. 

Guardianship  of  lunatic:  See  Code  Civ.  Proc, 
sec.  1763. 

TITLE  IV. 

MASTER   AND    SERVANT. 

§  234.  Minors  may  apprentice  themselves. 

§  265.  Consent  of  parents,  &c.,  requisite. 

§  266.  Written  consent. 

§  267.  Executors  may  bind. 

§  268.  Supervisors  may  bind  out. 

§  269.  Town  officers. 

§  270.  Age  of  apprentice  to  be  inserted  in  indentures. 

§  271.  Indentures,  conditions  in. 

§  272.  Same. 

§  273.  Deposit  of  indentures. 

§  274.  Alien    minors. 

§  275.  Contract  under  preceding    section    to    be    acknowl- 
edged. 

§  276.  Causes  for  annulling  indentures. 

Employer  and  employee:  See,  generally,  sees. 
1865  et  seq. 

§  264.  Every  minor,  with  the  consent  of  the 
persons  or  officers  hereinafter  mentioned,  may,  of 
his  own  free  will,  bind  himself,  in  writing,  to 
serve  as  clerk,  apprentice,  or  servant,  in  any  pro- 
fession, trade,  or  employment,  during  his  minor- 


65  MASTER   AND   SERVANT.  §§  265-267 

ity,  and  such  binding  shall  be  as  valid  and  effec- 
tual as  if  such  minor  was  of  full  age  at  the  time 
of  making  the  engagement. 

Aiding  apprentice  to  run  away  a  misdemeanor: 
Pen.  Code,  sec.  G46. 

See  Act  of  April  3,  1876,  relative  to  apprentices: 
See  post,  Appendix,  pp.  708  et  seq. 

Master  and  servant  generally:  See  post,  sec. 
2009. 

§  265.    Such  consent  shall  be  given: 

1.  By  the  father  of  the  minor.  If  he  be  dead, 
or  be  not  of  legal  capacity  to  give  his  consent,  or 
if  he  shall  have  abandoned  or  neglected  to  pro- 
vide for  his  family,  and  such  fact  be  certified  by 
a  justice  of  the  peace  of  the  township  or  county, 
or  sworn  to  by  a  credible  witness,  and  such  cer- 
tificate or  affidavit  be  indorsed  on  the  indenture, 
then: 

2.  By  the  mother.  If  the  mother  be  dead,  or  be 
not  of  legal  capacity  to  give  such  consent  or  re- 
fusal, then: 

3.  By  the  guardian  of  such  infant.  If  such  in- 
fant have  no  parent  living,  or  none  in  a  legal  ca- 
pacity to  give  consent,  and  there  be  no  guardian, 
then: 

4.  By  the  supervisors  of  the  county,  or  any  two 
justices  of  the  peace,  or  the  judge  of  the  Superior 
Coui-t  of  the  countj-; 

5.  If  such  minor  be  an  orphan,  under  the  care 
and  control  of  any  orphan  asylum  in  this  State, 
then  by  the  board  of  managers  thereof.  [Amend- 
ment approved  April  G,  1880;  Amendments  1880, 
5.    In  effect  immediately.] 

§  266.  Such  consent  shall  be  signified  in  writ- 
ing by  the  person  entitled  to  give  the  same,  by 
certificate  at  the  end  of,  or  indorsed  upon  the  in- 
dentures. 

§  267.    The  executors  of  any  last  will  of  a  par- 


§§  268-272  MASTER  AND   SERVANT.  66 

ent  wlio  shall  be  directed  iu  such  will  to  bring 
up  his  or  her  child  to  some  trade  or  calling,  may 
bind  such  child  to  service  as  a  clerk,  or  apprentice, 
in  like  manner  as  the  father  might  have  done  if 
living.  If  there  is  a  surviving  mother,  her  con- 
sent also  is  necessary. 

§  268.  The  supervisors  of  the  county  may  bind 
out  minors  who  are  or  shall  become  chargeable 
to  such  county,  to  be  clerks,  apprentices,  or  ser- 
vants, which  binding  shall  be  as  effectual  as  if 
such  minors  had  bound  themselves  with  the  con- 
sent of  their  father. 

§  269.  In  every  town  or  city,  the  presiding  of- 
ficer of  the  first  council  or  legislative  board  there- 
of, if  there  be  more  than  one,  or  any  public  offi- 
cer or  officers  appointed  to  provide  for  the  poor, 
may  in  like  manner  bind  out  any  child  who,  or 
whose  parents  are,  chargeable  to  any  such  town 
or  city. 

§  270.  The  age  of  every  infant  so  bound  shall 
be  inserted  in  the  indentures,  and  shall  be  taken 
to  be  the  true  age;  and  whenever  public  officers 
are  authorized  to  execute  any  indentures,  or  their 
consent  is  required  to  the  validity  of  the  same,  it 
shall  be  their  duty  to  inform  themselves  fully  of 
the  infant's  age. 

§  271.  Every  sum  of  money  paid  or  agreed  for, 
with  or  in  relation  to  the  binding  out  of  any  clerk, 
apprentice,  or  servant  shall  be  inserted  in  the  in- 
dentures. 

§  272.  The  indenture  shall  also  contain  an 
agreement,  on  the  part  of  the  person  to  whom 
stich  child  shall  be  bound,  that  he  will  cause  such 
child  to  be  instructed  to  read  and  write,  and  to  be 
taught  the  general  rules  of  arithmetic,  or,  in  lieu 
thereof,   that  he   will   send   such   child  to   school 


67  MASTER  AND   SERVANT.  §§  273-276 

three  mouths  of  eacli  jenv  of  the  period  of  in- 
denture. 

§  273.  The  counterpart  of  any  indenture  exe- 
cuted by  any  county,  or  city,  or  town  officers,  must 
be  by  them  deposited  in  the  othce  of  the  county 
clerli.     [In  effect  April  5,  1880.] 

§  274.  Any  minor,  capable  of  becoming  a  citi- 
zen of  this  State,  coming  from  any  other  coun- 
try. State,  or  Territory,  may  bind  himself  to  ser- 
vice until  his  majority,  or  for  anj'  shorter  term. 
Such  contract,  if  made  for  the  purpose  of  raising 
money  to  pay  his  passage,  or  for  the  payment  of 
such  passage,  may  be  for  the  term  of  one  year, 
although  such  term  may  extend  beyond  the  time 
when  such  ijerson  will  be  of  full  age,  but  it  shall 
in  no,  case  be  for  a  longer  term. 

§  275.  No  contract  made  under  the  preceding 
section  shall  bind  the  servant,  unless  duly  ac- 
l^nowledged  by  the  minor,  before  some  public  mag- 
istrate or  other  officer  authorized  to  administer 
oaths,  nor  tmless  a  certificate,  showing  that  the 
same  was  made  freely,  on  private  examination, 
be  indorsed  upon  the  contract. 

§  276.  Such  indentures  of  apprenticeship  may 
be  annulled  for: 

1.  Fraud  in  the  contract  of  indenture; 

2.  When  such  contract  is  not  made  or  executed 
in  accordance  with  the  provisions  of  this  title; 

.3.  For  willful  nonfulfillment,  by  such  master,  of 
the  provisions  of  such  iudeuttire; 

4.  Cruelty  or  maltreatment  of  such  apprentice 
by  the  master.  In  such  case,  the  apprentice  may 
recover  for  his  services. 


PAET   IV. 


CORPORATIONS. 

Title    I.    General  Provisions    as  to  all    Corpora- 
tions, §§  283-403. 
II.    Insurance  Corporations,  §§  414-448. 

III.  Railroad  Corporations,  §§  454-491. 

IV.  Street  Railroad  Corporations,  §§  497-511. 
V.    Wagon  Road  Corporations,  §§  512-523. 

YI.    Bridge,  Ferry,  Wharf,   Chute,  and  Pier 

Corporations,  §§  528-531. 
VII.    Telegraph  Corporations,  §§  536-541. 
VIII.    Water  and  Canal  Corporations,   §§  548- 
551. 
IX.    Homestead  Corporations,  §§  557-566. 
X.    Savings  and  Loan  Corporations,  §§  571- 
579. 
XI.    Mining  Corporations,  584-587. 
XII.    Religious,  Social,  and  Benevolent  Corpo- 
rations, §§  593-601. 

XIII.  Cemetery  Corporations,  §§  608-614. 

XIV.  Agricultural    Fair    Corporations,  §§  620- 

622. 
XV.     Gas  Corporations,  §§  628-632. 
XVI.    Land  and  Building  Corporations,  §§  639- 
648. 

TITLE  I. 

GENERAL  PROVISIONS  APPLICABLE  TO  ALL  CORPO- 
RATIONS. 

Chapter    I.    Formation    of    Corporations,  §§    283- 
320. 
II.    Corporate  Stock,  §§  322-349. 

III.  Corporate  Powers,  §§  354-393. 

IV.  Extension  and  Dissolution  of  Corpo- 

rations, §§  399-403. 


69  FORMATION    OF    CORPORATIONS.  §  283 

CHAPTER  I. 

FORMATION    OF    CORPORATIONS. 

Article  I.     Corporations  Defined  and  how  Organized,  §§  283- 
300. 
II.     By-laws,   Directors,   Elections,   and   Meetings,   §§ 
301-320. 

ARTICLE  I. 

CORPORATIONS   DEFINED  AND  HOW  ORGANIZED. 

§  283.    Corporation   defined. 

§  284.    What  are  public  and   private  corporations. 

§  285.     Corporations,    how    formed. 

§  286.     For  what  purpose  private  corporations  are  formed. 

§  287.  How  corporations  may  continue  their  existence  un- 
der this  Code. 

§  288.    Existing  corporations  not  affected. 

§  289.    Name  of  instrument  creating  corporation. 

§  290.    Articles   of  incorporation,   what  to  contain. 

§  291.     Certain  corporations  to  state  further  facts  in  articles. 

§  292.  Five  corporators,  three  to  be  citizens  of  the  State, 
to  sign  articles  and  acknowledge  the  same. 

§  293.  Prerequisite  to  filing  articles.  Amounts  to  be  sub- 
scribed to  be  fixed. 

§  294.  Prerequisite  to  filing  articles  of  corporations  for 
profit. 

§  295.  Oath  of  officer  to  subscription  of  stock  and  payment 
of  ten  per  cent. 

§  296.  To  file  articles  with  county  clerk  and  secretary  of 
state,  and  receive  certificate.     Term  of  existence. 

§  297.  Certified  copy  of  certificate  to  be  prima  facie  evi- 
dence. 

§  298.  Who  are  members  and  who  stockholders  of  a  cor- 
poration. 

§  299.    When  member  dies  successor  to  be  elected. 

§  300.  Banking  corporations  may  elect  to  have  capital 
stock. 

§  283.  A  corporation  is  a  creature  of  the  law, 
having  certain  powers  and  duties  of  a  natural  per- 
son. Being  created  by  the  law,  it  may  continue 
for  any  length  of  time  which  the  law  prescribes. 

Powers  of  corporations:  See  post,  sees.  354  et 
seq. 


§§  284-287     FORMATION    OF    CORPORATIONS.  70 

Existence  of  corporations  limited  to  fifty  years 
Sees.  290,  401,  post. 

Renewal  of  Franchise,  act  relating  to:  Set> 
post,  Appendix,  p.  SIO,  sec.  2. 

§  284.  Corporations  are  either  public  or  pri- 
vate. Public  corporations  are  formed  or  organ- 
ized for  the  government  of  a  portion  of  the  tState; 
all  other  corporations  are  private.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  197, 
Tn  effect  July  1,  1874.] 

§  285.  Private  corporations  may  be  formed  by 
(he  voluntary  association  of  any  five  or  more  per- 
sons in  the  manner  prescribed  in  this  article.  A 
majority  of  such  persons  must  be  residents  of 
this  State.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  197.    In  effect  July  1,  1874.] 

See  Stats.  1858,  p.  2G4,  sec.  2;  Id.  57;  1850,  347; 
1851,  523;  1861,  567,  607;  1853,  87,  169;  1857,  75; 
1859,  281;  1862,  199;  1866,  743,  752;  1863,  624. 

Formation  of  corporation  to  be  under  general 
laws:  Const.  Cal.  1879,  art.  12,  sec.  1. 

§  286.  Private  corporations  may  be  formed  for 
any  purpose  for  which  individuals  may  lawfully 
associate  themselves.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  198.  In 
*>ffect  July  1,  1874.] 

Corporations  to  give  bonds  required  by  law:  See 
post.  Appendix,  p.  725. 

A^t  for  formation  of  chambers  of  commerce, 
boai*ds  of  trade,  mechanics'  institutes,  and  other 
Iviudred  protective  associations:  See  post,  appen- 
dix, p.  737. 

Co-operative  associations:  See  post,  Appendix, 
pp.  719,  720. 

§  287.  Any  corporation  existing  on  the  first 
day  of  January,  one  thousand  eight  hundred  and 


71  FORMATION    OF    CORPORATIONS.  §  288 

seveuty-tliree,  formed  under  the  laws  of  this  State, 
and  still  existing,  which  has  not  already  elected 
to  continue  its  existence,  under  the  provisions 
of  this  Code  applicable  thereto,  may,  at  any 
time  hereafter,  make  such  election  by  the  unani- 
mous vote  of  all  its  directors,  or  such  election 
may  be  made  at  any  annual  meeting  of  the  stock- 
holders, or  members,  or  at  any  meeting  called  by 
the  directors  expressly  for  considering  the  sub- 
ject, if  voted  by  stockholders  representing  a  ma- 
jority of  the  capital  stock,  or  by  a  majority  of  the 
members,  or  may  be  made  by  the  directors  upon 
the  written  consent  of  that  number  of  such  stock- 
holders or  members.  A  certificate  of  the  action 
of  the  directors,  signed  by  them  and  their  secre- 
tary, when  the  election  is  made  by  their  unani- 
mous vote,  or  upon  the  written  consent  of  the 
stockholders  or  members,  or  a  certificate  of  the 
proceedings  of  the  meeting  of  the  stockholders 
or  members,  when  such  election  is  made  at  any 
such  meeting,  signed  by  the  chairman  and  secre- 
tary of  the  meeting,  and  a  majority  of  the  direc- 
tors, must  be  filed  in  the  ofiice  of  the  clerk  of  the 
county  where  the  original  articles  of  corporation 
are  filed,  and  a  certified  copy  thereof  must  be  filed 
in  the  ofiice  of  the  secretary  of  state;  and  there- 
after the  corporation  shall  continue  its  existence 
under  the  provisions  of  this  Code  which  are  appli- 
cable thereto,  and  shall  possess  all  the  rights  and 
powers,  and  be  subject  to  all  the  obligations,  re- 
strictions, and  limitations  prescribed  thereby. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  198.     In  effect  July  1,  1874.] 

§  288.  No  corporation  formed  or  existing  be- 
fore twelve  o'clock  noon,  of  the  day  upon  which 
this  Code  takes  effect,  is  affected  by  the  provisions 
of  Part  lY.  of  Division  First  of  this  Code,  unless 
such   corporation  elects  to  continue  its  existence 


§§  2S9,  290     FORMATION    OF    CORPORATIONS.  72 

under  it  as  provided  in  section  287;  but  the  laws 
under  wliieli  such  corporations  were  formed  and 
exist  are  applicable  to  all  such  corporations,  and 
are  repealed,  subject  to  the  provisions  of  this  sec- 
tion. 

§  289.  The  instrument  by  w^hich  a  private  cor- 
poration is  formed  is  called  "Articles  of  Incorpo- 
ration." 

§  290.  What  articles  of  incorporation  must  con- 
tain. Articles  of  incorporation  must  be  prepared, 
setting  forth,— 

1.  The  name  of  the  incorporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  Avhere  its  principal  business  is  to 
be  transacted. 

4.  The  term  for  which  it  is  to  exist,  not  ex- 
ceeding- fifty  years. 

5.  The  number  of  its  directors  or  trustees, 
which  shall  not  be  less  than  five  nor  more  than 
eleven,  and  the  names  and  residence  of  those  who 
are  appointed  for  the  first  year;  provided,  that  the 
corporate  powers,  business,  and  property  of  cor- 
porations formed  or  to  be  formed  for  the  purpose 
of  erecting  and  managing  halls  and  buildings  for 
the  meetings  and  accommodation  of  several  lodges 
or  societies  of  any  benevolent  or  charitable  order 
or  organization,  and  in  connection  therewith  the 
leasing  of  stores  and  oflices  in  such  building  or 
buildings  for  other  purposes,  may  be  conducted, 
exercised,  and  controlled  by  a  board  of  not  less 
than  five  nor  more  than  fifty  directors,  to  be 
chosen  from  among  the  stockholders  of  such  cor- 
poration, or  from  among  the  members  of  such 
order  or  organization;  and  provided  also,  that  at 
any  time  during  the  existence  of  corporations  for 
profit,  other  than  those  of  the  character  last  here- 
inabove provided  for,  the  number  of  the  directors 
may    be    increased    or    diminished,     by    a    ma- 


73  FORMATION    OP    CORPORATIONS.  §  291 

jority  of  the  stockholders  of  the  corpora- 
tion, to  any  number  not  exceeding  eleven 
nor  less  than  five,  who  must  be  mem- 
bers of  the  corporation;  whereupon  a  certificate, 
stating  the  number  of  directors,  must  be  filed,  as 
provided  for  in  section  two  hundred  and  ninety- 
six  for  the  filing  of  the  original  articles  of  incor- 
poration; and  provided  also,  that  the  corporate 
powers,  business,  and  property  of  corporations 
formed,  or  to  be  formed,  for  social  purposes,  and 
not  directly  for  profit,  may  be  exercised,  conduct- 
ed, and  controlled  by  a  board,  consisting  of  such 
number  of  directors  as  may  be  in  the  constitution 
or  by-laws  provided;  and  corporations  so  formed 
may,  in  their  constitution  or  by-laws,  provide  for 
the  length  of  time  that  the  directors,  or  any  num- 
ber thereof,  shall  act.  and  may,  in  like  manner, 
provide  that  certain  directors,  or  a  certain  number 
of  the  board  of  directors  to  be  selected  by  the 
corporation  or  the  board  of  directors,  in 
the  mode  and  manner  provided  in  the  constitu- 
tion or  by-laws,  shall  act  for  any  specified  length 
of  time,  or  otherwise,  as  shall  be  in  the  constitu- 
tion or  by-laws  set  forth. 

6.  The  amount  of  its  capital  stock,  and  the 
number  of  shares  into  which  it  is  divided. 

7.  If  there  is  a  capital  stock,  the  amount  ac- 
tually subscribed,  and  by  whom.  [Amendment 
approved  March  31,  1891;  Stats.  1891,  p.  285.] 

Other  requisites  of  the  articles  of  incorporation 
of  particular  kinds  of  corporation  will  be  found 
enumerated  in  the  following  sections:  291  as  to 
railroad,  wagon  road,  and  telegraph  corporations; 
593  and  594  as  to  benevolent  corporations. 

Limit  of  corporate  existence:  See  sec.  354.  subd. 
1.  Renewal  of  franchise.  See  post,  appendix,  p. 
BIT,  sec.  2. 

§  291.    The  articles  of  incorporation  of  any  rail- 

Civ.    Code— 7. 


§§  292-294      FORMATION    OF    CORPORATIONS.  74 

road,  wagon  road,  or  telegraph  organization  must 
also  state: 

1.  Tlie  Idnd  of  road  or  telegraph  intended  to  be 
constructed ; 

2.  The  place  from  and  to  which  it  is  intended  to 
be  run,  and  all  the  intermediate  branches; 

3.  Ihe  estimated  length  of  the  road  or  telegraph 
line; 

4.  That  at  least  ten  per  cent,  of  the  capital 
stock  subscribed  has  been  paid  in  to  the  treas- 
urer of  the  intended  corporation. 

§  292.  The  articles  of  incorporation  must  be 
subscribed  by  five  or  more  persons,  a  majority  of 
whom  must  be  residents  of  this  State,  and  ac- 
knowledged by  each  before  some  officer  authorized 
to  take  and  certify  acknowledgments  of  convey- 
ances of  real  property.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  199.  In  ef- 
fect July  1,  1874.] 

§  293.  Each  intended  corporation  named  in 
section  291,  before  filing  articles  of  incorporation, 
must  have  actually  subscribed  to  its  capital  stock, 
for  each  mile  of  the  contemplated  work,  the  fol- 
lowing amounts,  to -wit: 

1.  One  thousand  dollars  per  mile  of  railroads; 

2.  One  hundred  dollars  per  mile  of  telegraph 
lines; 

3.  Three  hundred  dollars  per  mile  of  wagon 
roads. 

§  294.  Before  the  articles  of  incorporation  of 
any  corporation  referred  to  in  the  preceding  sec- 
tion are  filed,  there  must  be  paid  for  the  benefit 
of  the  corporation,  to  a  treasurer  elected  by  the 
subscribers,  ten  per  cent,  of  the  amount  sub- 
scribed. 

Stats.  1850,  p.  370,  sees.  156,  157. 


75  FORMATION    OF    CORPORATIONS.      §§  295-297 

§  295.  Before  the  secretary  of  state  issues  to 
any  such  corporation  a  certificate  of  the  filing  of 
articles  of  incorporation,  there  must  be  filed  in  his 
office  an  affidavit  of  the  president,  secretary,  or 
treasurer  named  in  the  articles,  that  the  required 
amount  of  the  capital  stocli  thereof  has  been  ac- 
tually subscribed,  and  ten  per  cent,  thereof 
actually  paid  to  a  treasurer  for  the  benefit  of  the 
corporation. 

Signing  fictitious  name  or  fraud  in  the  subscrip- 
tion is  made  a  misdemeanor  by  Penal  Code,  sec. 
557. 

§  296.  Upon  filing  the  articles  of  incorporation 
in  the  office  of  the  county  cleric  of  the  county  in 
which  the  principal  business  of  the  company  is  to 
be  transacted,  and  a  copy  thereof,  certified  by  the 
county  clerk,  with  the  secretary  of  state,  and  the 
affidavit  mentioned  in  the  last  section,  where  such 
affidavit  is  required,  the  secretary  of  state  must 
issue  to  the  corporation,  over  the  great  seal  of  the 
State,  a  certificate  that  a  copy  of  the  articles,  con- 
taining the  required  statement  of  facts,  has  been 
filed  in  his  office;  and  thereupon  the  persons  sign- 
ing the  articles,  and  their  associates  and  succes- 
sors, shall  be  a  body  politic  and  corporate,  by  the 
name  stated  in  the  certificate,  and  for  the  term  of 
fifty  years,  unless  it  is  in  the  articles  of  incorpo- 
ration otherwise  stated,  or  in  this  Code  otherwise 
specially  provided.  [Amendment  approved  xMarch 
30,  1874;  Amendments  1S73-4,  199.  In  effect  July 
1,  1874.] 

§  297.  A  copy  of  any  articles  of  incorporation 
filed  in  pursuance  of  this  chapter,  and  certified  by 
the  secretary  of  state,  or  by  the  county  clerk  of 
the  county  where  the  original  articles  shall  have 
been  filed,  must  be  received  in  all  the  courts  of 
this  State,  and  other  places,  as  prima  facie  evi- 
dence of  the  facts  therein  stated.     [Amendment 


§§  298,  299     FORMATION   OP  CORPORATIONS.  76 

approved  March  8,  1895;  Stats.  1895,  p.  27.    In  ef- 
fect immediately.] 

Stats.  1862,  199;  1853,  83;  1850,  370,  sec.  158;  18G1, 
560,  sec.  17. 

§  298.  The  owners  of  shares  in  a  corporation 
which  has  a  capital  stock  are  called  stocliholders. 
If  a  corporation  has  no  capital  stock,  the  corpo- 
rators and  their  successors  are  called  members. 

§  299.  No  corporation  hereafter  formed  shall 
purchase,  locate,  or  hold  property  in  any  county 
in  this  State,  without  filing  a  copy  of  the  copy  of 
its  articles  of  incorporation  filed  in  the  office  of 
the  secretary  of  state,  duly  certified  by  such  secre- 
tary of  state,  in  the  office  of  the  county  clerk  of 
the  county  in  which  such  property  is  situated, 
Avithin  sixty  days  after  such  purchase  or  location 
is  made.  Every  corporation  now  in  existence, 
whether  formed  under  the  provisions  of  this  Code 
or  not,  must,  within  ninety  days  after  the  passage 
of  this  section,  file  such  certified  copy  of  the  copy 
of  its  articles  of  incorporation  in  the  office  of  the 
county  clerk  of  every  county  in  this  State  in  which 
it  holds  any  property,  except  the  county  where  the 
original  articles  of  incorporation  are  filed;  and  if 
any  corporation  hereafter  acquire  any  property 
in  a  county  other  than  that  in  which  it  now  holds 
property,  it  must,  within  ninety  days  thereafter, 
file  with  the  clerk  of  such  county  such  certified 
copy  of  the  copy  of  its  articles  of  incorporation. 
The  copies  so  filed  with  the  several  county  clerks 
and  certified  copies  thereof  shall  have  the  same 
force  and  effect  in  evidence  as  would  the  orig- 
inals. Any  corporation  failing  to  comply  with 
the  provisions  of  this  section  shall  not  maintain 
or  defend  any  action  or  proceeding  in  relation  to 
such  property,  its  rents,  issues,  or  profits,  until 
such  articles  of  incorporation,  and  such  certified 
copy  of  its  articles  of  incorporation,  and  such  cer- 


77  FORMATION    OF    CORPORATIONS.  §  300 

tified  copy  of  the  copy  of  its  articles  of  incorpora- 
tion shall  be  filed  at  the  places  directed  by  the 
general  law  and  this  section;  provided,  that  all 
corporations  shall  be  liable  in  damages  for  any 
and  all  loss  that  may  arise  by  the  failure  of  such 
corporation  to  perform  any  of  the  foregoing  duties 
within  the  time  mentioned  in  this  section;  and 
provided  further,  that  the  said  damages  may  be 
recovered  in  an  action  brought  in  any  court  of  this 
State  of  competent  jurisdiction,  by  any  party  or 
parties  suffering  the  same,  [Amendment  ap- 
proved April  23,  1880;  Amendments  1880f  13.  In 
effect  April  23,  38S0.] 

Right   to   purchase   and   hold   real   estate:      See 
see.  354,  subd.  4,  post. 

§  300.    Repealed.     [March  9,  ISliS;  Stats.  1893,  p. 
112.] 

ARTICLE  II. 
BY-LAWS,    DIRECTORS,    ELECTIONS,   AND   MEETINGS. 

§  301.    Adoption  of  by-laws,  when,  how,  and  by  whom. 

§  302.     Directors,    election   of,   &c. 

§  303.     Ey-laws  may  provide  for  what. 

§  304.     By-laws  recoided  and  how  amended. 

§  305.     How  many  and  who  to  be  directors. 

§  306.     Directors    must   be   elected    and   by-laws   adopted   at 

first  meeting. 
§  307.    Elections,  how  conducted. 
§  308.     Organization   of   board    of   directors,    &c. 
§  309.     Dividends    to    be    made    from    surplus    profits. 
§  310.     Removal  from  office  of  directors,  &c. 
§  311.    Justice  of  the  peace  may  order  meeting  when. 
§  312.     Majority  of  stock  must  be  represented. 
§  313.     All  stock  may  be  represented  in  votes. 
§  314.     Election   may  bo  postponed. 

§  315.     Complaints  and  quo  warranto  regarding  elections. 
§  316.     False   certificate,    report,    or  notice   to  make   officers 

liable. 
§  317.    Meeting  by  consent  to  be  valid. 
§  318.    Proceedings  at  meeting  to  be  binding. 
§  319.     Meetings,  where  held. 
§  320.     Special  meetings,   how  called. 
§  321.     Must   keep   list   of  stockholders,    «S;c. 
§  321a.  Corporation  may  change  its  principal  place  of  bus- 
iness. 


§§  301-303      FORMATION    OP    CORPORATIONS.  78 

§  301.  Every  corporation  formed  under  this  ti- 
tle must,  within  one  mouth  after  filing  articles  of 
incorporation,  adopt  a  Code  of  by-laws  for  its  gov- 
ernment not  inconsistent  with  the  Constitution 
and  laws  of  this  State.  The  assent  of  stocliholders 
representing  a  majority  of  all  the  subscribed  capi- 
tal stock,  or  of  a  majority  of  the  members,  if  there 
be  no  capital  stock,  is  necessary  to  adopt  by-laws, 
if  they  are  adopted  at  a  meeting  called  for  that 
purpose;  and  in  the  event  of  such  meeting  being 
called,  two  weeks'  notice  of  the  same  by  advertise- 
ment in  some  newspaper  published  in  the  county 
in  which  the  principal  place  of  business  of  the 
corporation  is  located,  or  if  none  is  published 
therein,  then  in  a  paper  published  in  an  adjoining 
county,  must  be  given  by  order  of  the  acting 
president.  The  written  assent  of  the  holders  of 
two-thirds  of  the  stock,  or  of  two-thirds  of  the 
members,  if  there  be  no  capital  stock,  shall  be  ef- 
fectual to  adopt  a  code  of  by-laAvs  without  a  meet- 
ing for  that  purpose.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  200.  In  ef- 
fect July   1,   1874.] 

Repeal  and  amendment  of  by-laws:  See  sec. 
304,  post. 

§  302.  The  directors  of  a  corporation  must  be 
elected  annually  by  the  stockholders  or  members, 
and  if  no  provision  is  made  in  the  by-laws  for  the 
time  of  election,  the  election  must  be  held  on  the 
first  Tuesday  in  June.  Notice  of  such  election 
must  be  given,  and  the  right  to  vote  determined  as 
prescribed  in  section  301.  1 

Postponing  election:     See  sec.  314,  and  sec.  306,     ] 
post. 

§  303.    A    corporation    may,     by    its    by-laws, 
where  no  other  provision  is  specially  made,  provide    j 
for:  * 


79  FORMATION    OF    CORPORATIONS.  §  303 

1.  The  time,  place,  aud  manner  of  calling  and 
conducting  its  meetings,  and  may  dispense  with 
notice  of  all  regular  meetings  of  stockholders  or 
directors ; 

2.  The  number  of  stockholders  or  members 
constituting  a  quorum; 

3.  The  mode  of  voting  by  proxy; 

4.  The  qualifications  and  duties  of  directors, 
the  time  of  their  annual  election,  and  the  mode 
and  manner  of  giving  notice  thereof; 

5.  Tiie  compensation  and  duties  of  officers; 

6.  The  manner  of  election  and  the  tenure  of 
office  of  all  officers  other  than  the  directors;  and 

7.  Suitable  penalties  for  violations  of  by-laws, 
not  exceeding,  in  any  case,  one  hundred  dollars 
for  any  one  offense. 

8.  The  newspaper  in  which  all  notices  of  the 
meetings  of  stockholders  or  board  of  directors, 
notice  of  which  is  required,  shall  be  published, 
which  must  be  some  newspaper  published  in  the 
county  where  the  principal  place  of  business  of 
the  corporation  is  located,  or  if  none  is  published 
therein,  then  in  a  newspaper  published  in  an  ad- 
joining county;  provided,  that  when  the  by-laws 
prescribe  the  newspaper  in  which  said  publication 
shall  be  made,  if  from  any  cause,  at  the  time  any 
publication  is  desired  to  be  made,  the  publication 
of  such  newspaper  shall  have  ceased,  the  board 
of  directors  may,  by  an  order  entered  on  the  rec- 
ords of  the  corporation,  direct  the  publication  to 
be  made  in  some  other  newspaper  published  in  the 
county,  or  if  none  is  published  therein,  then  in  an 
adjoining  county.  [Amendment  approved  March 
19,  1889;  Amendments  1889,  p.  3G4.] 

By-laws  may  also  provide  for  amount  of 
stock  to  be  owned  by  director:  Sec.  305,  post; 
for  the  filling  of  vacancies  on  the  board  of  direc- 
tors: Id.;  for  the  duties  of  directors:  Sec.  308;  for 
the  issuing  of  certificates  of  stock  before  full  pay- 


§  304  FORMATION    OF    CORPORATIONS.  SO 

meut  therefor:  Sec.  323;  for  the  disposal  of  stock 
owued  by  the  corporation:  Sec.  344.  For  what  the 
by-hiws  of  non-prolitable  corporations  may  pro- 
vide, see  sec.  599,  post. 

Nature  and  effect  of  by-laws,  generally:  See 
ante,  sec.  301. 

Powers  of  corporations:  See  post,  sec.  354. 

§  304.  All  by-laws  adopted  must  be  certified 
bj^  a  majority  of  the  directors  and  secretary  of 
the  corporation,  and  copied  in  a  legible  hand,  in 
some  boolv  kept  in  the  office  of  the  corporation, 
to  be  known  as  the  "Book  of  Bj'-Laws,"  and  no 
by-law  .shall  take  effect  until  so  copied,  and  the 
book  shall  then  be  opened  to  the  inspection  of  the 
public  during  office  hours  of  each  day  except  holi- 
days. The  by-laws  may  be  repealed  or  amended, 
or  new  by-laws  may  be  adopted,  at  the  annual 
meeting,  or  at  any  other  meeting  of  the  stock- 
holders or  members,  called  for  that  purpose  by  the 
directors,  by  a  vote  representing  two-thirds  of  the 
subscribed  stock,  or  by  two-thirds  o^"  the  mem- 
bers. The  written  assent  of  the  holders  of  two- 
thirds  of  the  stock,  or  two-thirds  of  the  members 
if  there  be  no  capital  stock,  shall  be  effectual  to 
repeal  or  amend  any  by-law,  or  to  adopt  addi- 
tional by-laws.  The  power  to  repeal  and  amend 
the  by-laws,  and  adopt  new  by-laws,  may,  by  a 
similar  vote  at  any  such  meeting,  or  sim- 
ilar written  assent,  be  delegated  to  the 
board  of  directors.  The  power,  when  del- 
egated, may  be  revoked  by  a  similar  vote, 
at  any  regular  meeting  of  the  stockholders 
or  members.  Whenever  any  amendment  or  new 
by-law  is  adopted,  it  shall  be  copied  in  the  book 
of  by-laws  with  the  original  by-laws,  and  imme 
diately  after  them,  and  shall  not  take  effect  until 
so  copied.  If  any  by-law  be  repealed,  the  fact  of 
repeal,  with  the  date  of  the  meeting  at  which  the 


SI  FORMATION    OF    CORPORATIONS.  §  305 

repeal  was  enacted,  or  written  assent  was  filed, 
shall  be  stated  in  said  book,  and  until  so  stated 
the  repeal  shall  not  talve  effect.  [Amendment  ap- 
proved March  14,  1SS5;  Stats.  1885,  130.] 

§  305.  The  corporate  powers,  business,  and 
property  of  all  corporations  formed  under  this  ti- 
tle must  be  exercised,  conducted,  and  controlled 
by  a  board  of  not  less  than  five  nor  more  than 
eleven  directors,  to  be  elected  from  amonj?  the 
holders  of  stock,  or,  where  there  is  no  capital 
stock,  then  from  the  members  of  such  corpora- 
tions; except  that  corporations  formed,  or  to  be 
formed,  for  the  purpose  of  erecting  and  managing 
halls  and  buildings  for  the  meetings  and  accom- 
modation of  several  lodges,  or  societies,  of  any  be- 
nevolent or  charitable  order,  or  organization,  and 
in  connection  therewith,  the  leasing  of  stores  and 
olfices  in  such  building  or  buildings,  for  other 
purposes,  the  corporate  powers,  business,  and 
property  thereof  may  be  conducted,  exercised,  and 
controlled  by  a  board  of  not  less  than  five  nor 
more  than  fifty  directors,  to  be  chosen  from 
among  the  stockholders  of  such  corporation,  or 
from  among  the  members  of  such  order  or  organ- 
ization. A  majority  of  the  directors  must  be,  in 
all  cases,  citizens  of  this  State.  Directors  of  cor- 
porations for  profit  must  be  holders  of  stock  there- 
in, in  an  amount  to  be  fixed  by  the  by-laws  of  the 
corporation.  Directors  of  all  other  corporations 
must  be  members  thereof.  Unless  a  quorum  is 
present  and  acting,  no  business  performed,  or  act 
done,  is  valid,  as  against  the  corporation.  When- 
ever a  vacancy  occurs  in  the  office  of  director, 
unless  the  by-laws  of  the  corporation  otherwise 
provide,  such  vacancy  must  be  filled  by  an  ap- 
pointee of  the  board.  [Amendment  approved  Jan- 
uary 20,  18T():  Amendments  1875-6,  71.  In  effect 
January  20,  187G.] 


§§  303-308     FORMATION    OP    CORPORATIONS.  82 

Stats.    1853,    1G9;    1806,   743-752;   1850,    178,   347, 
sees.  159,  345,  347;  1802,  1S9;  1803,  024. 
Acts  of  the  directors:  See  sec.  308,  post. 

§  306.  Repealed.  L March  19,  1889.  Stats.  1889, 
p.  305.] 

INEanner  of  electing:  See  sec.  307;  and  elections 
general^':   Sec.   312. 

§  307.  All  elections  must  be  by  ballot,  and 
every  stoclcholder  shall  have  the  right  to  vote  in 
person  or  by  proxy  the  number  of  shares  standing 
in  his  name,  as  provided  in  section  three  hundred 
and  twelve  of  this  Code,  for  as  many  persons  as 
there  are  directors  to  be  elected,  or  to  cumulate 
said  shares  and  give  one  candidate  as  many  votes 
as  the  number  of  directors  multiplied  by  the 
number  of  his  shares  of  stock  shall  equal,  or  to 
distribute  them  on  the  same  principle  among  as 
many  candidates  as  he  shall  thinlc  fit.  In  corpo- 
rations having  no  capital  stock,  each  member  of 
the  corporation  may  cast  as  many  votes  for  one 
director  as  there  are  directors  to  be  elected,  or 
may  distribute  the  same  among  any  or  all  of  the 
candidates.  In  either  case,  the  directors  receiving 
the  hiq-hest  number  of  votes  shall  be  declared 
elected.  The  provisions  of  this  section,  so  far  as 
it  relates  to  cumulative  voting,  shall  not  apply  to 
literary,  religious,  scientific,  social,  or  benevolent 
societies,  unless  it  shall  be  so  provided  in  their 
by-lav-s  or  rules.  [Amendment  approved  Marct 
10.  1887;  Stats.  1887,  p.  95.    In  effect  immediately.] 

Stats.  1853,  159;  1801,  607;  1850,  347,  281;  1870, 
577. 

Elections,  how  conducted:  See  sec.  312. 

§  308.  Immediately  after  their  election,  the  di- 
rectors must  organize  by  the  election  of  a  presi- 
dent, who  must  be  one  of  their  number,  a  secre- 
tary, and  treasurer.     They  must  perform  the  du- 


83  FORMATION    OF    CORPORATIONS.  §  309 

ties  enjoined  on  them  by  law  and  the  by-laws  of 
the  corporation.  A  majority  of  the  directors  is  a 
sufficient  number  to  form  a  board  for  the  trans- 
action of  business,  and  every  decision  of  a  ma- 
jority of  the  directors  forming  such  board,  made 
when  duly  assembled,  is  valid  as  a  corporate  act. 

§  309.  Only  dividends  from  surplus  profits  to 
be  declared.  The  directors  of  corporations  must 
not  make  dividends,  except  from  the  surplus  prof- 
its arising  from  the  business  thereof:  nor  must 
they  divide,  withdraw,  or  pay  to  the  stockholders, 
or  any  of  them,  any  part  of  the  capital  stock:  nor 
must  they  create  debts  beyond  their  subscribed 
capital  stock;  nor  must  they  divide,  withdraw,  or 
pay  to  the  stockholders,  or  any  of  them,  any 
part  of  the  capital  stock,  except  as  hereinafter 
provided,  nor  reduce  or  increase  the  capital  stoclv, 
except  as  herein  specially  provided.  For  a  viola- 
tion of  the  provisions  of  this  section,  the  directors 
under  whose  administration  the  same  may  iuive 
happened  (except  those  who  may  have  caused 
their  dissent  therefrom  to  be  entered  at  large  on 
the  minutes  of  the  directors  at  the  time,  or  were 
not  present  when  the  same  did  happen)  are,  in 
their  individual  and  private  capacity,  jointly  and 
severally  liable  to  the  corporation,  and  to  the  cred- 
itors thereof,  in  the  event  of  its  dissolution,  to  the 
full  amount  of  the  capital  stock  so  divided,  with- 
drawn, paid  out,  or  reduced,  or  debt  contracted; 
and  no  statute  of  limitations  is  a  bar  to  any  suit 
against  such  directors  for  any  sums  for  which 
they  are  liable  by  this  section;  provided,  however, 
that  where  a  corporation  has  been  heretofore  or 
may  hereafter  be  formed  for  tlie  purpose,  among 
other  things,  of  acquiring,  holding,  and  selling  real 
estate,  water,  and  water  rights,  the  directors  of 
such  corporation  may,  with  the  consent  of  stocli- 
holders  representing  two-thirds  of  ttie  capital 
stock  thereof,  given  at  a  meeting  called  for  that 


§  310  FORMATIONS   OF  CORPORATIONS.  84 

purpose,  divide  among  the  stocl^holders  the  land, 
water,  or  water  rights  so  by  such  corporation 
held,  in  the  proportions  to  which  their  holdings 
of  such  stocli  at  the  time  of  such  division  would 
entitle  them.  All  conveyances  made  by  the  cor- 
poration in  pursuance  of  this  section  shall  be 
made  and  received  subject  to  the  debts  of  such 
corporation  existing  at  the  date  of  the  conveyance 
thereof.  Nothing  herein  shall  prohibit  a  division 
and  distribution  of  the  capital  stoclv  of  any  cor- 
poration which  remains  after  the  payment  of  all 
its  debts,  upon  its  dissolution,  or  the  expiration  of 
its  term  of  existence,  [Amendment  approved 
March  31,  1891;  Stats.  1891,  p.  468.] 

Stats.  1850,  348;  1861,  607,  sec.  50;  1861,  626.  sec. 
56;  1866,  747-757;  1853,  89,  sees.  13,  14. 

Misconduct  as  to  dividends  and  discounts.  Penal 
Code,  sec.  560;  Fraud  in  accounts.  Idem,  sec.  563; 
False  reports.  Idem,  sec.  564;  By  absent  director. 
Idem,  sees.  569,  570. 

Penalty  for  violation  of  this  section:  See  Pen. 
Code.  sec.  560. 

Director's  liability  for  embezzlement  by  officers 
of  corporation:  Const.  Cal.  1879,  art.  12,  sec.  3. 

Dividends  of  insurance  companies:  See  post, 
sees.  417,  429. 

§  310.  No  director  shall  be  removed  from  of- 
fice, unless  by  a  vote  of  two-thirds  of  the  mem- 
bers, or  of  stockholders  holding  two-thirds  of  the 
capital  stock,  at  a  general  meeting  held  after  pre- 
vious notice  of  the  time  and  place,  and  of  the  in- 
tention to  propose  such  removal.  Meetings  of 
stockholders  for  this  purpose  may  be  called  by  the 
president,  or  by  a  majority  of  the  directors,  or  by 
members  or  stockholders  holding  at  least  one-half 
of  the  votes.  Such  calls  must  be  in  writing,  and 
addressed  to  the  secretary,  who  must  thereupon 
give  notice  of  the  time,  place,  and  object  of  the 


So  FORMATION    OF    CORPORATIONS.      §§  3U,  312 

meetiug,  and  by  ^'hose  order  it  is  called.  If  the 
secretary  refuse  to  give  the  notice,  or  if  there 
is  none,  the  call  may  be  addressed  directly  to  the 
members  or  stockholders,  and  be  served  as  a  no- 
tice, in  M'hich  case  it  must  specify  the  time  and 
l^lace  of  meeting.  The  notice  must  be  given  in  the 
manner  provided  in  section  301  of  this  title,  unless 
other  express  provision  has  been  made  therefor  in 
the  by-laws.  In  case  of  removal,  the  vacancy  may 
be  filled  by  election  at  the  same  meeting. 

Act  to  protect  stockholders  and  persons  dealing 
with  corporations  from  misrepresentations  of  of- 
ficers: See  post.  Appendix,  p.  762. 

§  311.  Whenever,  from  any  couse,  there  is  no 
person  authorized  to  call  or  to  preside  at  a  meet- 
ing of  a  corporation,  any  justice  of  the  peace  of 
the  county  where  such  corporation  is  established 
may,  on  written  application  of  three  or  more  of  the 
stockholders  or  of  the  members  thereof,  issue  a 
warrant  to  one  of  the  stockholders  or  members,  di- 
recting him  to  call  a  meeting  of  the  corporation,  by 
giving  the  notice  required,  and  the  justice  may  in 
the  same  warrant  direct  such  person  to  preside  at 
such  meeting  until  a  clerk  is  chosen  and  qualified, 
if  there  is  no  other  ofiicer  present  legally  author- 
ized to  preside  thereat. 

§  312.  At  all  elections  or  votes  had  for  any 
purpose  there  must  be  a  majority  of  the  subscribed 
capital  stock,  or  of  the  members,  represented, 
either  in  person  or  by  proxy  in  writing.  Every 
person  acting  therein,  in  person  or  by  proxy  or 
representative,  must  be  a  member  thereof  or  a 
bona  fide  stockholder,  having  stock  in  his 
own  name  on  the  stock  books  of  the  corporation 
at  least  ten  days  prior  to  the  election.  Any  vote 
or  election  had  other  than  in  accordance  with  the 
provisions  of  this  article  is  voidable  at  the  in- 
stance of  absent  or  any  stockholders  or  members, 
Civ.  Code— 8 


§§  313-315      FORMATION    OP    CORPORATIONS.  86 

and  may  be  set  aside  hj  petition  to  the  District 
Court  of  the  county  Tsbere  the  same  was  held. 
Any  regular  or  called  meeting  of  the  stockholders 
or  members  may  adjourn  from  day  to  dny,  or 
from  time  to  time,  if  for  any  reason  there  is  not 
present  a  majoritj'  of  the  subscribed  stock  or 
members,  or  no  election  had— such  adjournment 
and  the  reasons  tlierefor  being  recorded  in  the 
journal  of  proceedings  of  the  board  of  directors. 
fAmendment  approved  April  1,  1878;  Amendment: 
1877-8,  79.  In  effect  April  1,  1878.] 
Notice  of  meeting:  See  sec.  302. 

§  313.  The  shares  of  stock  of  an  estate  of  a 
minor,  or  insane  person,  may  be  represented  by  his 
guardian,  and  of  a  deceased  person  bj'  his  execu- 
tor or  administrator.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  203.  In  ef- 
fect July  1.  1874.] 

§  314.  If  from  any  cause  an  election  does  not 
take  place  on  the  day  appointed  in  the  by-laws, 
it  may  be  held  on  anj'  day  thereafter  as  is  pro- 
vided for  in  such  by-laws,  or  to  which  such  elec- 
tion may  be  adjourned  or  ordered  by  the  direc- 
tors. If  an  election  has  not  been  held  at  the  ap- 
pointed time,  and  no  adjourned  or  other  meeting 
for  the  purpose  has  been  ordered  by  the  directors, 
a  meeting  may  be  called  by  the  stockholders  as 
provided  in  section  310  of  tliis  article. 

Stats.  1850,  347,  sec.  108;  1853,  88;  18G2,  199;  1861, 
610;  1863.  624. 

§  315.  Upon  the  application  of  any  person  or 
body  corporate  aggrieved  by  any  election  held  by 
any  corporate  body,  the  District  Court  of  tlie  dis- 
trict in  which  such  election  is  held  must  proceed 
forthwith  to  hear  the  allegations  and  proofs  of  the 
parties,  or  otherwise  inquire  into  the  matters  of 
complaint,  and  thereupon  confirm  the  election,  or- 


87  FORMATION    OF    CORPORATIONS.      §§  316-319 

der  a  uew  one,  or  direct  such  other  relief  in  the 
premises  as  accords  with  right  and  justice.  Upon 
filins:  the  petition,  and  before  any  further  pro- 
ceedings are  had  under  this  section,  five  days' 
notice  of  the  hearing  must  be  given,  under  the 
direction  of  the  court  or  the  judge  thereof,  to  the 
adverse  partj'  or  those  to  be  affected  thei'eby. 
[Amendment  approved  April  1.  1878;  Amendments 
1877-8,  79.     In  effect  April  1,  1878.] 

§  316.  Any  officer  of  a  corporation  vrho  vrill- 
fully  gives  a  certificate,  or  willfully  makes  an  of- 
ficial report,  public  notice,  or  entry  in  any  of  the 
records  or  books  of  the  corporation,  concerning  the 
corporation  or  its  business,  which  is  false  in  any 
material  representation,  shall  be  liable  for  all 
the  damages  resulting  therefrom  to  any  person 
injured  thereby;  and  if  two  or  more  officers  unite 
or  participate  in  the  commission  of  any  of  the 
acts  herein  designated,,  they  shall  be  jointly  and 
severally  liable.  [Amendment  approved  March 
30,  1874;  Amendments  1873-1,  203.  In  effect  July 
1,  1S74.] 

Penal  Code,   sees.  o.'S,  564. 

§  317.  When  all  the  stockholders  or  members 
of  a  corporation  are  present  at  any  meeting,  how- 
ever called  or  notified,  and  sign  a  Avritten  consent 
thereto  on  the  record  of  such  meeting,  the  doings 
of  such  meeting  are  as  valid  as  if  had  at  a  meet- 
ing legally  called  and  noticed. 

§  318.  The  stockholders  or  members  of  such 
corporation,  when  so  assembled,  may  elect  officers 
to  fill  all  vacancies  then  existing,  and  may  act 
upon  such  other  business  as  might  lawftdly  be 
transacted  at  regular  meetings  of  the  corporation. 

§  319.    The  meetings  of    the  stockholders    ami 


§§  320-321a   FORMATION   OP   CORPORATIONS.  88 

board  of  directors  of  a  corporation  must  be  held 
at  its  office  or  principal  place  of  business. 
Changing  place  of  business:  See  sec.  321. 

§  320.  When  no  provision  is  made  in  the  by- 
laws for  regular  meetings  of  the  directors  and  the 
mode  of  calling  special  meetings,  all  meetings 
must  be  called  by  special  notice  in  writing,  to  be 
given  to  each  director  by  the  secretary,  on  the  or- 
der of  the  president,  or  if  there  be  none,  on  the 
order  of  two  directors. 

§  321.  Every  corporation  doing  a  banlving  bus- 
iness in  this  State  must  keep  in  its  office,  in  a 
place  accessible  to  the  stockholders,  depositors, 
and  creditors  thereof,  and  for  their  use,  a  boo'.i, 
containing  a  list  of  all  stockholders  in  such  cor- 
poration, and  the  number  of  shares  of  stock  held 
by  each;  and  every  such  corporation  must  keep 
posted  in  its  office,  in  a  conspicuous  place,  accessi- 
ble to  the  public  generally,  a  notice,  signed  by  the 
president  or  secretary,  showing:  First,  The  names 
of  the  directors  of  such  corporation.  Second,  The 
number  and  value  of  shares  of  stock  held  by  each 
director.  The  entries  on  such  book,  and  such  no- 
tice, shall  be  made  and  posted  within  twenty-four 
hours  after  any  transfer  of  stock,  and  shall  be 
conclusive  evidence  against  each  director  and 
stockholder  of  the  number  of  shares  of  stock  held 
by  each.  The  provisions  of  this  section  shall  ap- 
ply to  all  banking  corporations,  formed  or  existing 
before  twelve  o'clock,  noon,  of  the  day  on  which 
this  Code  took  effect,  as  well  as  to  those  formed 
after  sucli  time.  [New  section  approved  Janu- 
ary 29,  1876;  Amendments  18T5-G,  72.  In  effect  in 
sixtj^  days.] 

§  321a.  Every  corporation  that  has  been  or  may 
be  created  under  the  general  laws  of  this  State 
may  change  its  principal  place  of  business  from 


?9  CORPORATE    STOCK.  §  322 

one  place  to  another  in  the  same  county,  or  from 
one  city  or  county  to  another  city  of  county  within 
this  State.  Befoie  such  ch:inge  is  made,  the  consent 
in  writing-,  of  the  holders  of  two-thirds  of  the  cap- 
ital stoclv  must  be  obtained  and  filed  in  the  office 
of  the  corporation.  When  such  consent  is  obtain- 
ed and  filed,  notice  of  the  intended  removal  or 
change  must  be  published,  at  least  once  a  week, 
for  three  successive  weelvS,  in  some  newspaper 
published  in  the  county  wherein  said  principal 
place  of  business  is  situated,  if  there  is  one  pub- 
lished therein;  if  not,  in  a  newspaper  of  an  ad- 
joining county,  giving  the  name  of  the  county  or 
city  where  it  is  situated,  and  that  to  which  it  is 
intended  to  remove  it.  [New  section  approved 
April  3,  1876;  Amendments  1875-6,  73.  In  effect 
April  3.  1876.] 


CHAPTEPv  II. 

CORPORATE    STOCK. 

ARTICLE  I. 
STOCK  AND   STOCKHOLDERS. 

§  322.  Liabilities  of  stockholders.  They  may  be  released, 
when. 

§  323.    Certificates,   how  and  when   issued. 

§  324.     Transfer  of  shares. 

§  325.  Transfer  of  shares  held  by  married  women,  &c.  Div- 
idends payable  to  married  women. 

§  326.    Non-resident  stockholders.    Bonds. 

§  327.    Contract  to  relieve  directors  void. 

§  322.  Each  stocliholder  of  a  corporation  is  in- 
dividually and  personally  liable  for  such  portions 
of  its  debts  and  liabilities  as  the  amount  of  stock 
or  shares  owned  by  him  bears  to  the  whole  of  the 
subscribed  capital  stock  or  shares  of  the  corpora- 
tion, and  for  a  like  proportion  only  of  each  debt 


§  322  CORPORATE   STOCK.  90 

or  claim  against  tlie  corporation.  Any  creditor 
of  the  corporation  may  institute  joint  or  several 
actions  against  any  of  its  stoclvholders,  for  the 
proportion  of  his  claim  payable  by  each,  and  in 
such  action  the  court  must  ascertain  the  propor- 
tion of  the  claim  or  debt  for  which  each  defend- 
ant is  liable,  and  a  several  judgment  must  be  ren- 
dered against  each,  in  conformity  therewith.  If 
any  stockholder  pays  his  proportion  of  any  debt 
due  from  the  corporation,  incurred  while  he  was 
such  stockholder,  he  is  relieved  from  any  further 
personal  liability  for  such  debt,  and  if  an  action 
has  been  brought  against  him  upon  such  debt,  it 
shall  be  dismissed,  as  to  him,  upon  his  paying  the 
costs,  or  such  proportion  thereof  as  may  be  prop- 
erly chargeable  against  him.  The  liability  of  each 
stockholder  is  determined  by  the  amount  of  stock 
or  shares  owned  by  him  at  the  time  the  debt  or 
liability  was  incurred;  and  such  liability  is  not 
released  by  any  subsequent  transfer  of  stock.  The 
term  stockholder,  as  used  in  this  section,  shall  ap- 
ply not  only  to  such  persons  as  appear  by  the 
books  of  the  corporation  to  be  such,  but  also  to 
every  equitable  owner  of  stock,  although  the 
same  appear  on  the  books  in  the  name 
of  another;  and  also  to  every  person  who 
has  advanced  the  installments  or  purcliase 
money  of  stock  in  the  name  of  a  minor,  so 
long  as  the  latter  remains  a  minor;  and  also  tc 
every  guardian,  or  other  trustee,  who  voluntarily 
invests  any  trust  funds  in  the  stock.  Trust  funds 
in  the  hands  of  a  guardian,  or  trustee,  shall  not  be 
liable  under  the  provisions  of  this  section,  hy  rea- 
son of  any  such  investment;  nor  shall  the  person 
for  whose  benefit  the  investment  is  made  be  re- 
sponsible in  respect  to  the  stock  until  he  becomes 
competent  and  able  to  control  the  same;  but  tht 
responsibility  of  the  guardian  or  trustee  making 
the  investment  shall  continue  until  that  period. 


91  CORPORATE   STOCK.  §§  323,  324 

Stock  held  as  collateral  security,  or  by  a  trustee, 
or  in  any  other  representative  capacity,  does  noi 
make  the  holder  thereof  a  stockholder  within  the 
meaning  of  this  section,  except  in  the  cases  above 
mentioned,  so  as  to  charge  him  with  any  propor- 
tion of  the  debts  or  liabilities  of  the  corporation; 
but  the  pledger,  or  person  or  estate  represented, 
is  to  be  deemed  the  stockholder,  as  respects  such 
liability.  In  corporations  having  no  capital  stock, 
each  member  is  individually  and  personally  lia- 
ble for  his  proportion  of  its  debts  and  liabilities, 
and  similar  actions  may  be  brought  against  him, 
either  alone  or  jointly  with  other  members,  to  en- 
force such  liability,  as  by  this  section  may  be 
brought  against  one  or  more  stockholders,  and 
similar  judgments  may  be  rendered.  The  liabil- 
ity of  each  stockholder  of  a  corporation  formed 
under  the  laws  of  any  other  State  or  Territory  of 
the  United  States,  or  of  any  foreign  country,  and 
doing  business  within  this  State,  shall  be  the 
same  as  the  liability  of  a  stockholder  of  a  cor- 
poration created  under  the  Constitution  and  laws 
of  this  State.  [Amendment  approved  March  15, 
1876;  Amendments  1875-6,  73.  In  effect  in  sixty 
days,] 

Act  to  protect  stockholders  from  fraudulent  rep- 
resentations of  officers:  See  post,  Appendix,  p.  762. 

Liability  of  stockholders  for  debts  of  the  corpo- 
ration is  declared  in  Const.  Cal.  1879,  art.  12,  sec.  3. 

§  323.  All  corporations  for  profit  must  issue 
certificates  for  stock  when  fully  paid  up,  signed 
by  the  president  and  secretary,  and  may  provide, 
in  their  by-laws,  for  issuing  certificates  prior  to  the 
full  payment,  under  such  restrictions  and  for  such 
purposes  as  their  by-laws  may  provide. 

§  324,  Whenever  the  capital  stock  of  any  cor- 
poration is  divided  into  shares,  and  certificates 
therefor  are  issued,  such  shares  of  stock,  except  as 


§  325  CORPORATE    STOCK.  92 

hereinafter  provicled,  are  personal  property,  and 
may  be  transferred  by  indorsement  by  the  signa- 
ture of  the  proprietor,  his  agent,  attorney,  or  legal 
representative,  and  the  delivery  of  the  certificate; 
but  such  transfer  is  not  valid,  except  as  to  the  par- 
ties thereto,  until  the  same  is  so  entered  upon  the 
books  of  the  corporation  as  to  show  the  names  of 
the  parties  by  whom  and  to  whom  transferred,  the 
number  of  the  certificate,  the  number  or  designa- 
tion of  the  shares,  and  the  date  of  transfer;  pro- 
vided, hoAvever,  that  any  corporation  organized 
for,  or  engaged  in  the  business  of  selling,  distrib- 
uting, supplying,  or  delivering  water  for  irriga- 
tion purposes  or  for  domestic  use,  may  in  its  by- 
laws provide  that  water  shall  only  be  so  sold,  dis- 
tributed, supplied,  or  delivered  to  owners  of  its 
capital  stoclc.  and  that  such  stock  shall  be  ap- 
purtenant to  certain  lands  when  the  same  are  de- 
scribed in  the  certificate  issued  therefor;  and  when 
such  certificate  shall  be  so  issued,  and  a  certified 
copy  of  such  by-law  recorded  in  the  office  of  the 
county  recorder  in  the  county  where  such  lands 
are  situated,  the  shares  of  stock  so  located  on  any 
land  shall  only  be  transferred  with  said  lands, 
and  shall  pass  as  an  appurtenance  thereto. 
[Amendment  approved  March  2tj,  1895;  Stats.  1895, 
p.  87.    In  effect  in  sixty  days.] 

Act  imposing  tax  on  issue  of  certificates:  See 
post.   Appendix,  p.  833.    Repealed. 

§  325.  Shares  of  stock  in  corporations  held  or 
owned  by  a  married  woman  may  be  transferred 
by  her,  her  agent,  or  attorney,  without  the  signa- 
ture of  her  husband,  in  the  same  manner  as  if 
such  married  woman  were  a  feme  sole.  All  div- 
idends payable  upon  any  shares  of  stock  of  a  cor- 
poration held  by  a  married  woman  may  be  paid 
to  such  married  woman,  her  agent  or  attorney,  in 
the  same  manner  as  if  she  were  unmarried,  and  it 


93  CORPORATE   STOCK.  §§  326,  327 

is  not  necessary  for  her  husband  to  join  in  a  re- 
ceipt therefor;  and  any  proxy  or  power  given  by 
a  married  woman,  touching  any  shares  of  stock 
of  any  corporation  owned  by  her,  is  valid  and 
binding  without  the  signature  of  her  husband,  the 
same  as  if  she  were  unmarried. 

§  326.  When  the  shares  of  stock  in  a  corpora- 
tion are  owned  by  parties  residing  out  of  the  State, 
the  president,  secretary,  or  directors  of  the  cor- 
poration, before  entering  any  transfer  of  the 
shares  on  its  boolvS,  or  issuing  a  certificate  there- 
for to  the  transferee,  may  require  from  the  attor- 
ney or  agent  of  tlie  non-resident  owner,  or  from 
the  person  claiming  under  the  transfer,  an  affida- 
vit or  other  evidence  that  the  non-resident  owner 
was  alive  at  the  date  of  the  transfer,  and  if  such 
affidavit  or  other  satisfactory  evidence  be  not  fur- 
nished, may  require  from  the  attorney,  agent,  or 
claimant,  a  bond  of  indemnity,  with  two  sureties, 
satisfactory  to  the  officers  of  the  corporation,  or,  if 
not  so  satisfactory,  then  one  approved  by  a  judge 
of  the  Superior  Court  of  the  county  in  which  the 
principal  office  of  the  corporation  is  situated,  con- 
ditioned to  protect  the  corporation  against  any  lia- 
bility to  the  legal  representatives  of  the  owner  of 
the  shares,  in  case  of  his  or  her  death  before  the 
transfer;  and  if  such  affidavit  or  other  evidence  or 
bond  be  not  furnished  when  required,  as  herein 
provided,  neither  the  corporation,  nor  any  officer 
thereof,  shall  be  liable  for  refusing  to  enter  the 
transfer  on  the  books  of  the  corporation.  L Amend- 
ment approved  February  16,  1883;  Stats.  1883,  4. 
In  effect  February  IG,  1883.] 

§  327.  Any  contract  or  contracts,  verbal  or 
written,  hereafter  made,  whereby  it  is  sought  di- 
rectly or  indirectly  to  relieve  any  director  or  trus- 
tee of  any  corporation  or  joint  stock  association 
from  any  liability  imposed  by  section  three  of  ar- 


§g  3S1,  332  CORPORATE   STOCK.  94 

tide  twelve  of  the  Constitution  of  California,  are 
hereby  declared  to  be  and  shall  be  null  and  void. 
[New  section  approved  April  12,  1880;  Amend- 
ments 1880,  9.     In  effect  April  12,  1880.] 


ARTICLE  II. 

ASSESSMENTS  OF  STOCK. 

§  331.  Directors  may  levy  assessments. 

§  332.  Limitation.     How  levied. 

§  333.  Levy  of  assessment.  Old  assessment  remaining  un- 
paid. 

§  334.  What  order  shall  contain. 

§  335.  Notice   of  assessment.     Form. 

§  336.  Publication  and  service. 

§  337.  Delinquent  notice.     Form. 

§  338.  Contents  of  notice. 

§  3;]9.  How    published. 

§  340.  .Jurisdiction  acquired,  how. 

§  341.  Sale  to  be  by  public  auction. 

§  3+2.  Hiphest  biddt  r  to  be  the  purchaser. 

§  343.  In  default  of  bidders,  corporation  may  purchase. 

§  344.  Disprs'tion   of  stock   purchased   by   corporation. 

§  345.  Extension  of  time  of  delinquent  sale. 

§  343.  Assessments  shall   not  bo   invalidated. 

§  347.  Action   for  recovery  of  stock,  and  limitation  thereof. 

§  348.  Affidavits  of  publication.  Affidavits  of  sale.  To  be 
filed. 

§  349.  Waiver  of  sale.    Action  to  recover  assessment. 

§  331.  The  directors  of  any  corporation  formed 
or  existini?  under  the  laws  of  this  State,  after  one- 
fonrth  of  its  capital  stoclv  has  been  subscribed, 
may,  for  the  purpose  of  paying  expenses,  conduct- 
ing business,  or  paying  debts,  levy  and  collect  as- 
sessments upon  the  subscribed  capital  stock  there- 
of, in  the  manner  and  form,  and  to  the  extent  pro- 
vided herein.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  206.  In  effect  July  1 
1874.] 

§  332.  No  one  assessment  must  exceed  ten  per 
cent,  of  the  amount  of  the  capital  stock  named  in 


95  CORPORATE   STOCK.  §§  333,  334 

the  articles  of  incorporation,  except  in  the  cases  in 
this  section  otherwise  provided  for,  as  follows: 

1.  If  the  whole  capital  of  a  corporation  has  not 
been  paid  up,  and  the  corporation  is  unable  to 
meet  its  liabilities  or  to  satisfy  the  claims  of  its 
creditors,  the  assessment  may  be  for  the  full 
amount  unpaid  upon  the  capital  stock;  or  if  a  less 
amount  is  sutficieut,  then  it  may  be  for  such  a 
percentage  as  will  raise  that  amount; 

2.  Q'he  directors  of  railroad  corporations  may 
assess  the  capital  stock  in  installments  of  not  more 
than  ten  per  cent,  per  month,  unless  in  the  arti- 
cles of  incorporation  it  is  otherwise  provided; 

3.  The  directors  of  fire  or  marine  insurance  cor- 
porations may  assess  such  a  percentage  of  the  cap- 
ital stock  as  they  deem  proper. 

§  333.  No  assessment  must  be  levied  while 
any  portion  of  a  previous  one  remains  unpaid;  un- 
less: 

1.  The  power  of  the  corporation  has  been  exer- 
cised in  accordance  with  the  provisions  of  this  ar- 
ticle for  the  purpose  of  collecting  such  previous 
assessment; 

2.  The  collection  of  the  previous  assessment  has 
been  enjoined;  or, 

3.  The  assessment  falls  within  the  provisions  of 
either  the  first,  second,  or  third  subdivisions  of 
section  332. 

§  334.  Every  order  levying  an  assessment  must 
specify  the  amount  thereof,  when,  to  whom,  and 
where  payable;  fix  a  day,  subsequent  to  the  full 
term  of  publication  of  the  assessment  notice,  on 
which  the  unpaid  assessments  shall  be  delinquent, 
not  less  than  thirty  nor  more  than  sixty  days  from 
the  time  of  making  the  order  levying  the  assess- 
ment; and  a  day  for  the  sale  of  delinquent  stock, 
not  less  than  fifteen  nor  more  than  sixty  days 
from  the  day  the  stock  is  declared  delinquent. 


§§  335,  336  CORPORATE  STOCK.  96 

§  335.  Upon  the  making  of  the  order,  the  sec- 
retary shall  cause  to  be  published  a  notice  there- 
of, in  the  following  form: 

(Name  of  corporation  in  full.  Location  of  prin- 
cipal place  of  business.)  Notice  is  hereby  given, 
that  at  a  meeting  of  the  directors,  held  on  the 
(date),  an  assessment  of  (amount)  per  share  was 
levied  upon  the  capital  stock  of  the  corporation, 
payable  (when,  to  whom,  and  where).  Any  stock 
upon  w^hich  this  assessment  shall  remain  unpaid 
on  the  (day  fixed)  will  be  delinquent  and  adver- 
tised for  sale  at  public  auction,  and,  unless  pay- 
ment is  made  before,  will  be  sold  on  the  (day  ap- 
pointed), to  pay  the  delinquent  assessment,  to- 
gether with  costs  of  advertising  and  expenses  of 
sale. 

(Signature  of  secretary,  with  location  of  office.) 

§  336.  The  notice  must  be  personally  served 
upon  each  stockholder,  or,  in  lieu  of  personal  ser- 
vice, must  be  sent  through  the  mail,  addressed  to 
each  stockholder  at  his  place  of  residence,  if 
known,  and  if  not  known,  at  the  place  where  the 
principal  office  of  the  corporation  is  situated,  and 
be  published  once  a  week,  for  four  successive 
wrecks,  in  some  newspaper  of  general  circulation 
anddevoted  to  thepublicationof  general  news, pub- 
lislied  at  the  place  designated  in  the  articles  of  in- 
corporation as  the  principal  place  of  business,  and 
also  in  some  newspaper  published  in  the  county  in 
which  the  works  of  the  corporation  are  situated, 
if  a  paper  be  published  therein.  If  the  works  of 
the  corporation  are  not  within  a  State  or  Terri- 
tory of  the  United  States,  publication  in  a  paper 
of  the  place  where  they  are  situated  is  not  neces- 
sary. If  there  be  no  newspaper  published  at  the 
place  designated  as  the  principal  place  of  business 
of  the  corporation,  then  the  publication  must  be 
made  in  some  other  newspaper  of  the  county,  if 


97  CORPORATE   STOCK.  §§  337,  338 

there  be  one,  and  if  there  be  none,  then  in  a  news- 
paper published  in  an  adjoining  county.  [Amend- 
ment approved  March  30,  1874;  Amendments 
1873-4,  20G.     In  effect  July  1,  1874.] 

§  337.  If  any  portion  of  the  assessment  men- 
tioned in  the  notice  remains  unpaid  on  the  day 
specified  therein  for  declaring  the  stock  delin- 
quent, the  secretary  must,  unless  otherwise  or- 
dered by  the  board  of  directors,  cause  to  be  pub- 
lished in  the  same  papers  in  which  the  notice 
hereinbefore  provided  for  shall  have  been  pub- 
lished, a  notice  substantially  in  the  following 
form : 

(Name  in  full.  Location  of  principal  place  of 
business.)  NOTICE.— I'here  is  delinquent  upon 
the  following  described  stock,  on  account  of  as- 
sessment levied  on  the  (date),  (and  assessments 
levied  previous  thereto,  if  any),  the  several 
amounts  set  opposite  the  names  of  the  respective 
shareholders,  as  follows:  (Names,  number  of  cer- 
tificate, number  of  shares,  amount.)  And  in  ac- 
cordance with  law  (and  an  order  of  the  board  of 
directors,  made  on  the  [date],  if  any  such  order 
shall  have  been  made),  so  many  shares  of  each 
parcel  of  such  stock  as  may  be  necessary,  will  be 
sold,  at  the  (particular  place),  on  the  (date),  at 
(the  hour)  of  such  day,  to  pay  delinquent  assess- 
ments thereon,  together  with  costs  of  advertising 
and  expenses  of  the  sale. 

(Name  of  secretary,  with  location  of  office.) 

§  338.  The  notice  must  specify  every  certificate 
of  stock,  the  number  of  shares  it  represents,  and 
the  amount  due  thereon,  except  where  certificates 
may  not  have  been  issued  to  parties  entitled 
thereto,  in  which  case  the  number  of  shares  and 
amount  due  thereon,  together  with  the  fact  that 
the  certificates  for  such  shares  have  not  been  is- 
sued, must  be  stated. 
Civ.  Code— 9 


§§  339-343  CORPORATE    STOCK.  98 

§  339.  The  notice,  when  published  in  a  daily 
paper,  must  be  published  for  ten  days,  excluding 
Sundays  and  holidays,  previous  to  the  day  of  sale. 
When  published  in  a  weekly  paper,  it  must  be 
published  in  each  issue  for  two  weeks  previous 
to  the  day  of  sale.  The  first  publication  of  all  de- 
linquent sales  must  be  at  least  fifteen  days  prior 
to  the  day  of  sale. 

§  340.  By  the  publication  of  the  notice,  the  cor- 
poration acquires  jurisdiction  to  sell  and  convey  a 
perfect  title  to  all  of  the  stock  described  in  the 
notice  of  sale  upon  which  any  portion  of  the  as- 
sessment or  costs  of  advertising-  remains  unpaid 
at  the  hour  appointed  for  the  sale,  but  must  sell 
no  more  of  such  stock  than  is  necessary  to  pay 
the  assessments  due  and  costs  of  sale. 

§  341.  On  the  day,  at  the  place,  and  at  the  time 
appointed  in  the  notice  of  sale,  the  secretary  must, 
unless  otherwise  ordered  by  the  directors,  sell  or 
cause  to  be  sold  at  public  auction,  to  the  highest 
bidder  for  cash,  so  many  shares  of  each  parcel  of 
the  described  stock  as  may  be  necessary  to  pay 
the  assessment  and  charges  thereon,  according  to 
the  terms  of  sale;  if  payment  is  made  before  the 
time  fixed  for  sale,  the  party  paying  is  only  re- 
quired to  pay  the  actual  cost  of  advertising,  in 
addition  to  the  assessment. 

§  342.  The  person  offering  at  such  sale  to  pay 
the  assessment  and  costs  for  the  smallest  number 
of  shares  or  fraction  of  a  share  is  the  highest  bid- 
der, and  the  stock  purchased  must  be  transferred 
to  him  on  the  stock  books  of  the  corporation,  on 
payment  of  the  assessment  and  costs. 

§  343.  If,  at  the  sale  of  stock,  no  bidder  offers 
the  amount  of  the  assessments  and  costs  and 
charges  due,  the  same   may  be  bid  in  and  pur- 


99  CORPORATE    STOCK.  §§  344-346 

chased  by  the  corporation,  through  the  secretary, 
president,  or  any  director  thereof,  at  the  amount 
of  the  assessments,  costs,  and  charges  due;  and 
the  amount  of  the  assessments,  costs,  and 
charges  must  be  credited  as  paid  in  full  on  the 
booivs  of  the  corporation,  and  entry  of  the  trans- 
fer of  the  stock  to  the  corporation  must  be  made 
on  the  books  thereof.  AVhile  the  stock  remains 
the  property  of  the  corporation  it  is  not  assessable, 
nor  must  any  dividends  be  declared  thereon;  but 
all  assessments  and  dividends  must  be  apportioned 
upon  the  stock  held  by  the  stockholders  of  the 
corporation. 

§  344.  All  purchases  of  its  own  stock  made  by 
any  corporation  vest  the  legal  title  to  the  same 
In  the  corporation;  and  the  stock  so  purchased  is 
held  subject  to  the  control  of  the  stockholders, 
who  mny  make  such  disposition  of  the  same  as 
they  deem  fit,  in  accordance  with  the  by-laws  of 
the  corporation  or  vote  of  a  majority  of  all  the 
remaining  shares.  "Whenever  any  portion  of  the 
capital  stock  of  a  corporation  is  held  by  the  corpo- 
ration by  ])urchase,  a  majority  of  the  remaining 
shares  is  a  majority  of  the  stock  for  all  purposes 
of  election  or  voting  on  any  question  at  a  stock- 
holders' meeting. 

§  345.  The  dates  fixed  in  any  notice  of  assess- 
ment or  notice  of  delinquent  sale,  published  ac- 
cording to  the  provisions  hereof,  may  be  extended 
from  time  to  time  for  not  more  than  thirty  days, 
by  order  of  the  directors,  entered  on  the  records 
of  the  corporation;  but  no  order  extending  the 
time  for  the  performance  of  any  act  specified  Id 
any  notice  is  effectual  unless  notice  of  such  ex- 
tension or  postponement  is  appended  to  and  pub- 
lished with  the  notice  to  which  the  order  relates. 

§  346.    No  assessment  is  invalidated  by  a  fail- 


§§  347,  348  CORPORATE   STOCK.  100 

ure  to  make  publication  of  tlie  notices  hereinbe- 
fore provided  for,  nor  by  the  nonperformance  of 
any  act  required  in  order  to  enforce  the  payment 
of  the  same;  but  in  case  of  any  substantial  error 
or  omission  in  the  course  of  proceedings  for  collec- 
tion, all  previous  proceedings,  except  the  levying 
of  the  assessment,  are  void,  and  publication  must 
be  begun  anew. 

§  347.  No  action  must  be  sustained  to  recover 
stocli  sold  for  delinquent  assessments,  upon  the 
ground  of  irregularity  in  the  assessment,  irregu- 
larity or  defect  of  the  notice  of  sale  or  defect  or  ir- 
regularity in  the  sale,  unless  the  party  seeking  to 
maintain  such  action  first  pays  or  tenders  to  the 
corporation,  or  tbe  party  holding  the  stock  sold,  the 
sum  for  which  the  same  was  sold,  together  with 
all  subsequent  assessments  which  may  have  been 
paid  thereon  and  interest  on  such  sums  from  the 
time  they  were  paid;  and  no  such  action  must  be 
sustained  unless  the  same  is  commenced  by  the 
filing  of  a  complaint  and  the  issuing  of  a  sum- 
mons thereon  within  six  months  after  such  sale 
was  made. 

§  348.  The  publication  of  notice  required  by 
this  article  may  be  proved  by  the  affidavit  of  the 
printer,  foreman,  or  principal  clerk  of  the  news- 
paper in  which  the  same  was  published;  and  the 
aflidavlt  of  the  secretary  or  auctioneer  is  prima 
facie  evidence  of  the  time  and  place  of  sale,  of  the 
quantity  and  particular  description  of  the  stock 
sold,  and  to  whom,  and  for  what  price,  and  of  the 
fact  of  the  purchase  money  being  paid.  The  aflB- 
davits  must  be  filed  in  the  office  of  the  corporation, 
and  copies  of  the  same,  certified  by  the  secretary 
thereof,  are  prima  facie  evidence  of  the  facts 
therein  stated.  Certificates,  signed  by  the  secre- 
tary, and  under  the  seal  of  the  corporation,  are 
prima    facie     evidence    of     the   contents    thereof. 


101  CORPORATE  POWERS.  §§  349,  354 

L Amendment,   approved  March  30,   1874;  Amend- 
ments 1873-4,  207.    In  effect  July  1,  1874.] 

§  349.  On  the  day  specified  for  declaring  the 
stock  delinquent,  or  at  any  time  subsequent  there- 
to and  before  the  sale  of  the  delinquent  stock,  the 
board  of  directors  may  elect  to  Tvaive  further  pro 
ceedings  under  this  chapter  for  the  collection  of 
delinquent  assessments,  or  any  part  or  portion 
thereof,  and  may  elect  to  proceed  by  action  to  re- 
cover the  amount  of  the  assessment  and  the  costs 
and  expenses  already  incurred,  or  any  part  or  por- 
tion thereof. 

CHAPTER  III. 

CORPORATE  POWERS. 

Article  I,  General  Powers,   §§  354-361. 

II.  Records,  §§  377,  378. 

III.  Examination  of  Corporation,  §§  382-384. 

IV.  Judgment  against  and  Sale  of  Corporate  Prop- 

erty,   §§  388-393. 


ARTICLE  I. 

GENERAL   POWDERS. 

§  354.  Powers  of  corporations. 

§  355.  Limitation  of  powers. 

§  356.  Banking  expressly  prohibited. 

§  357.  Misnomer  does  not  invalidate  Instrument. 

§  358.  Corporation  to  organize  within  one  year. 

§  359.  Increasing  and  diminishing  capital  stock,  how. 

§  330.  Corporations  may  acquire  real  property,  and  how 
much. 

§  361.  Consolidation   of   mining   corporations. 

§  362.  Amendment  of  articles  or  certificate  of  incorpora- 
tion. 

5  363.  Power  to  hold  real  estate. 

§  363.  Erroneous  filing  of  articles  of  incorporation. 

§  354.    Every  corporation,  as  such,  has  power: 
1.    Of  succession  by  its  corporate  name,  for  the 
period  limited;  and  when  no  period  is  limited,  per- 
petually ; 


§  354  CORPORATE  POWERS.  102 

2.  To  sue  and  be  sued,  in  any  court; 

3.  To  make  and  use  a  common  seal,  and  alter 
the  same  at  pleasure; 

4.  To  purchase,  hold,  and  convey  such  real  and 
personal  estate  as  the  purposes  of  the  corporation 
may  require,  not  exceeding  the  amount  limited  in 
this  part; 

5.  To  appoint  such  subordinate  officers  or  agents 
as  the  business  of  the  corporation  may  require, 
and  to  allow  them  suitable  compensation; 

6.  To  make  by-laws,  not  inconsistent  with  any 
existing  law,  for  the  management  of  its  property, 
the  regulation  of  its  affairs,  and  for  the  transfer 
of  its  stock; 

7.  To  admit  stockholders  or  members,  and  to 
sell  their  stock  or  shares  for  the  payment  of  as- 
sessments or  installments; 

S.  To  enter  into  any  obligations  or  contracts  es- 
sential to  the  transaction  of  its  ordinary  affairs, 
or  for  the  purposes  of  the  corporation. 

The  Code,  in  defining  a  corporation,  says  it  has 
"certain  powers  and  duties  of  a  natural  person": 
Sec.  283.  Section  3o4  proceeds  to  enumerate  these 
powers,  and  section  355  limits  its  powers  to  those 
enumerated  and  to  those  necessarily  incidental. 

Act  providing  for  payment  of  wages  of  mechan- 
ics and  laborers,  see  post.  Appendix,  p.  750. 

Subd.  1.  Succession  for  period  limited:  See  Code 
limit  of  fifty  years,  sec.  290.  Limit  for  homestead 
corporations  ten  years:  Sec.  557. 

Where  action  against  corporation  may  be 
brought:  See  Const.  Cal.  1879,  art.  12,  sec.  15;  see 
Code  Civ.  Proc,  sec.  395. 

Acquiring  property  by  eminent  domain:  See 
Code  Civ.  Proc,  sees.  1237  et  seq. 

Making  contracts  generally:     See  infra,  subd.  8. 

Subd.  6.  Power  to  make  by-laws:  See  ante,  sec. 
301. 

Selling  delinquent  shares:  See  ante,  sees.  331  et 
seq. 


103  CORPORATE   POWERS.  §§  355-358 

Powers  of  municipal  corporations:  See  Polit. 
Code. 

§  355.  In  addition  to  the  powers  enumerated 
in  the  preceding  section,  and  to  tliose  expressly 
given  in  that  title  of  this  part  under  whicli  it  is 
incorporated,  no  corporation  shall  possess  or  exer- 
cise any  corporate  powers,  except  such  as  are 
necessary  to  the  exercise  of  the  powers  so  enum- 
erated and  given. 

Incidental  powers.— This  section  is  a  negative 
grant  of  incidental  powers,  with  respect  to  which, 
see  sec.  354. 

§  356.  No  corporation  shall  create  or  issue  bills, 
notes,  or  other  evidences  of  debt,  upon  loans  or 
otherwise,  for  circulation  as  money. 

Issuing  or  circulating  paper  money,  except  as 
authorized  by  the  United  States,  punished  by 
I'enal  Code,  §  648. 

Constitutional  provision  to  the  same  purpose: 
Const.  Cal.  1879,  art.  12,  sec.  5.  That  this  limita- 
tion upon  corporate  powers  does  not  prevent  the 
execution  of  negotiable  instruments,  see  sec.  354, 
subd.  8. 

§  357.  The  misnomer  of  a  corporation  in  any 
written  instrument  does  not  invalidate  the  instru- 
ment, if  it  can  be  reasonably  ascertained  from  it 
what  corporation  is  intended. 

§  358.  If  a  corporation  does  not  organize  and 
commence  the  transaction  of  its  business  or  the 
construction  of  its  works  within  one  year  from  the 
date  of  its  incorporation,  its  corporate  powers 
cease.  The  due  incorporation  of  any  company, 
claiming  in  good  faith  to  be  a  corporation  under 
this  part,  and  doing  business  as  such,  or  its  right 
to  exercise  corporate  powers,  shall  not  be  inquired 
into,  collaterally,  in  any  private  suit  to  which  such 


§  359  CORPORATE  POWERS.  104 

de  facto  corporation  may  be  a  party;  but  such  in- 
quiry may  be  had  at  the  suit  of  the  State  on  in- 
formation of  the  attorney  general. 

Provision  respecting  railroad  companies,  two 
years:    See  sec.  468,  post. 

Same  respecting  street  railroads:  See  sec.  502. 
post. 

§  359.  No  corporation  shall  issue  stocli  or  bonds 
except  for  money  paid,  labor  done,  or  property 
actually  received,  and  all  fictitious  increase  of 
stock  or  indebtedness  is  void. 

Every  corporation  may  increase  or  diminish  its 
capital  stoclv,  create  or  increase  its  bonded  indebt 
edness,  subject  to  the  following  provisions: 

First.  The  capital  stock  of  a  corporation  may  be 
increased  or  diminislied  at  a  meeting  of  the  stock- 
holders by  a  vote  representing  at  least  two-thirds 
of  the  subscribed  capital  stock;  such  meeting  must 
be  called  by  the  board  of  directors,  and  notice 
must  be  given  by  publication  in  a  newspaper  pub 
lished  in  the  county  where  the  principal  place  of 
business  of  such  corporation  is  located,  or  if  there 
be  none  published  in  said  county,  then  in  a  news- 
paper published  in  an  adjoining  county,  such  pa- 
per to  be  designated  by  the  board  of  directors  in 
the  order  calling  the  meeting. 

Second.  The  notice  must  specify  the  object  of 
the  meeting,  and  the  amount  to  which  it  is  pro- 
posed to  increase  or  diminish  the  capital  stock,  the 
time  and  place  of  holding  the  meeting,  which  lat- 
ter must  be  at  the  principal  place  of  business  of 
the  corporation,  and  at  the  building  where  the 
board  of  directors  usually  meet.  The  notice  herein 
provided  must  be  published  once  a  week  for  at 
least  sixty  days.  The  capital  stock  cannot  be  di- 
minished to  an  amount  less  than  the  indebtedness 
of  the  corporation. 

Third.    The  bonded  indebtedness  of  a  corporation 


105  CORPORATE    POWERS.  §  359 

may  be  created  or  increased  by  a  vote  of  the 
stockholders  representing  at  least  two-thirds  of 
the  subscribed  capital  stock  at  a  meeting  called 
by  the  board  of  directors,  and  after  notice  of  the 
time  and  place  of  the  meeting,  published  in  the 
same  manner  and  for  the  time  above  prescribed, 
which  notice  shall  state  the  amount  of  the  bonded 
indebtedness  which  it  is  proposed  to  create,  or  the 
amount  to  which  it  is  proposed  to  increase  such 
indebtedness,  and  shall  in  all  other  respects  con- 
tain the  same  matters  as  are  above  provided  and 
set  forth  in  tiie  notice  of  a  meeting  to  increase  or 
diminish  the  capital  stock. 

Fourth.  In  addition  to  the  notice  by  publication, 
the  secretary  of  the  corporation  shall  also  address 
a  notice  to  each  of  the  stockholders  whose  names 
appear  on  the  company's  books  as  sufficiently  ad- 
dressed, at  his  place  of  residence  if  known,  and  if 
not  known,  then  at  the  principal  place  of  busi- 
ness of  the  corporation,  which  ntice  shall  be 
mailed  to  such  stockholders  at  least  thirty  days 
before  the  day  appointed  for  such  meeting. 

And  upon  such  increase  or  diminution  of  the 
capital  stock  or  creation  or  increase  of  bonded  in- 
debtedness being  made  as  herein  provided,  a  cer- 
tificate must  be  signed  by  the  chairman  and  sec- 
retary of  the  meeting  and  a  majority  of  the  direc- 
tors, showing  a  compliance  with  the  requirements 
of  this  section,  the  amount  to  which  the  capital 
stock  has  been  increased  or  diminished,  or  the 
amount  of  the  bonded  indebtedness  created  or  to 
which  the  bonded  indebtedness  may  have  been  in- 
creased, and  the  amount  of  stock  represented  at 
the  meeting,  and  the  whole  vote  by  which  the  ob- 
ject was  accomplished.  The  certificate  must  be 
filed  in  the  office  of  the  clerk  of  the  county  where 
the  original  articles  of  incorporation  are  filed,  and 
a  certified  copy  thereof  in  the  office  of  the  secre- 
tary of  state;  and  thereupon    the    capital    stock 


§§  360,  361  CORPORATE   POWERS.  106 

shall  be  so  increased  or  diminished,  or  the  bonded 
indebtedness  may  be  created  or  increased  accord- 
ingly. A\  hen  the  by-laws  of  the  corporation  pre- 
scribe the  paper  in  which  notices  of  meeting  are  to 
be  published,  the  notices  herein  provided  for  shall 
be  published  in  such  paper  unless  publication 
thereof  shall  have  ceased.  [Amendment  approved 
March  23,   1893;  Stats.   1898,  p.   191.] 

The  amendment  of  1885,  supra,  was  an  amend- 
ment to  the  section  as  amended  in  1883:  Stats. 
1883,  81. 

"The  preceding  sections  of  this  article  w^ert 
taken  from  Stats.  1850,  847,  sees.  1-6.  See  also 
Stats.  1858,  88;  1861,  85;  1862,  540,  199,  110;  1866. 
747;  1868,  325":    Commissioners'  note. 

§  360.  No  corporation  shall  acquire  or  hold  any 
more  real  property  than  may  be  reasonably  ueces 
sary  for  the  transaction  of  its  business,  or  the  con- 
struction of  its  worlvs,  except  as  otherwise  spe- 
cially xjrovided.  A  corporation  may  acquire  real 
property,  as  provided  in  Title  VII.,  Part  III.,  Code 
of  Civil  Procedure,  when  needed  for  any  of  the 
uses  and  purposes  mentioned  in  said  title  [Sees. 
1237,  12j3J.  Amendment  approved  March  80.  1>74; 
Amendments  1873-4,  p.  208.    In  effect  July  1,  1874.] 

Act  authorizing  owning  of  lots  and  building 
where  business  carried  on:   See  post.  Appendix,  p. 

Power  of  insurance  corporations  to  acquire  land: 
See  sec.  415. 

Power  of  railroad  corporation  to  acquire  land: 
See  sec.  465. 

§  361.  It  shall  be  lawful  for  tw^o  or  more  corpo- 
rations formed,  or  that  may  hereafter  be  formed, 
under  the  laws  of  this  State,  for  mining  purposes, 
which  own  or  possess  mining  claims  or  lands  ad- 
joining each  other,  or  lying  in  the  same  vicinity, 
to  consolidate  their  capital  stock,  debts,  property, 
assets,  and  franchises,  in  such  manner  and  upon 


107  CORPORATE   POWERS.  §  361 

sueli  terms  as  may  be  agreed  upon  by  the  respec- 
tive boards  of  directors  or  trustees  of  such  com- 
panies so  desiring  to  consolidate  their  interests; 
but  no  such  consolidation  shall  take  place  without 
the  written  consent  of  the  stocliholders  represent- 
ing two-thirds  of  the  capital  stocli  of  each  com- 
pany, and  no  such  consolidation  shall,  in  any  way, 
relieve  such  companies,  or  the  stocliholders  there- 
of, from  any  and  all  just  liabilities;  and  in  case  of 
such  consolidation,  due  notice  of  the  same  shall 
be  given,  by  advertising,  for  one  month,  in  at  least 
one  newspaper  in  the  county  and  State  where  the 
said  mining  property  is  situated,  if  there  be  one 
published  therein,  and  also  in  one  newspaper  pub- 
lislied  in  1  he  county,  or  city  and  county,  where  the 
principal  place  of  business  of  any  of  said  com- 
panies shall  be.  And  when  the  said  consolidation 
is  completed,  a  certificate  thereof,  containing  the 
manner  and  terms  of  said  consolidation,  shall  be 
filed  in  the  ofiice  of  the  county  clerli  of  the  county 
in  which  the  original  certificate  of  incorporation 
of  any  of  said  companies  shall  be  filed,  and  a  copy 
thereof  shall  be  filed  in  the  office  of  the  secretary 
of  state;  such  certificate  shall  be  signed  by  a  ma- 
jority of  each  board  of  trustees  or  directors  of  the 
original  companies,  and  it  shall  be  their  duty  to 
call,  within  thirty  days  after  the  filing  of  such 
certificate,  and  after  at  least  ten  days'  public 
notice,  a  meeting  of  the  stockholders  of  all  of  said 
companies  so  consolidated,  to  elect  a  board  of 
trustees  or  directors  for  the  consolidated  company, 
for  the  year  thence  next  ensuing.  The  said  certifi- 
cate shall  also  contain  all  the  requirements  pre- 
scribed by  section  two  hundred  and  ninety  of  said 
Civil  Code. 

This  act  shall  apply  to  all  corporations  formed 
under  the  laws  of  this  State,  whether  formed  under 
the  said  Civil  Code  or  prior  thereto.  [New  section 
approved  March  20,  1876;  Amendments  x875-6,  p, 
75.     In  effect  March  20,  1876.] 


§  362  CORPORATE   POWERS.  108 

This  section  was  added  by  the  Act  of  1875-6; 
Amendments  1875-6,  p.  75.  Section  two  of  the  act 
was  as  follows: 

Sec.  2.  This  act  shall  apply  to  all  corporations 
formed  under  the  laws  of  this  state,  whether 
formed  under  the  said  Civil  Code,  or  prior  thereto. 

Sec.  3.  This  act  shall  talie  effect  from  and  aftei 
its  passage. 

§  362.  Any  corporation  may  amend  its  articles 
of  association  or  certificate  of  incorporation  by  a 
majority  vote  of  its  board  of  directors  or  trustees, 
and  bj'  a  vote  or  written  assent  of  the  stoclihold- 
ers  representing  at  least  two-thirds  of  the  sub- 
scribed capital  stocli  of  such  corporation;  and  a 
copy  of  the  said  articles  of  association  or  certi- 
ficate of  incorporation,  as  thus  amended,  duly  cer- 
tified to  be  correct  by  the  president  and  secretary 
of  the  board  of  directors  or  trustees  of  such  corpo- 
ration, shall  be  filed  in  the  office  or  offices  where 
the  original  or  certificate  of  incorporation  are  re- 
quired by  this  code  to  be  filed;  and  from  the  time 
of  so  filing  such  copy  of  the  amended  articles  of 
association  or  certificate  of  incorporation,  such 
corporation  shall  have  the  same  powers,  and  it 
and  the  stockholders  thereof  shall  thereafter  be 
subject  to  the  same  liabilities,  as  if  such  amend- 
ment had  been  embraced  in  the  original  articles  or 
certificate  of  incorporation;  provided,  that  the  time 
of  the  existence  of  such  corporation  shall  not  be 
by  such  amendment  extended  beyond  the  time 
fixed  in  the  original  articles  or  certificate  of  incor- 
poration; provided  further,  that  such  original  and 
amended  articles  or  certificate  of  incorporation 
shall  together  contain  all  the  matters  and  things 
required  under  which  the  original  articles  of  asso- 
ciation or  certificate  of  incorporation  were  exe- 
cuted and  filed;  and  provided  further,  that  nothing 
herein   contained   shall   be   construed  to   cure   or 


109  CORPORATE    POWERS.  §  363 

amend  any  defect  existing  in  any  original  certifi- 
cate of  incorporation  lieretofore  filed,  by  reason 
that  sncli  certificate  does  not  set  forth  the  matters 
required  to  make  the  same  valid  as  a  certificate  of 
incorporation  at  the  time  of  its  filing;  and  also 
provided,  that  if  the  assent  of  two-thirds  of  the 
said  stockholders  to  snch  amendment  has  not  been 
obtained,  that  a  notice  of  the  intention  to  make 
the  amendment  shall,  first  be  advertised  for  thirty 
(30)  days  in  some  newspaper  published  in  the 
town  or  county,  or  city  and  county,  in  which  the 
principal  place  of  business  of  the  association  oi 
corporation  is  located,  before  the  filing  of  the  pro- 
posed amendment;  and  provided  also,  that  noth- 
ing in  this  section  shall  be  construed  to  authorize 
any  corporation  to  diminish  its  capital  stock. 
[Amendment  approved  March  11,  1893;  Stats. 
1893,  p.  131.] 

§  363.  By  a  unanimous  vote  of  all  the  directors 
at  any  regular  meeting,  any  corporation  existing 
or  hereafter  to  be  formed  under  the  laws  of  this 
State  may  acquire  and  hold  the  lots  and  building 
on  and  in  which  its  business  is  carried  on,  and 
may  improve  the  same  to  any  extent  required  for 
the  convenient  transaction  of  its  business.  [In  ef- 
fect March  5,  1889.  New  section  added  by  act  ap- 
proved March  5,  18S9;  Stats.  1889,  p.  67.  'in  effect 
immediately.] 

§  363.  When  articles  of  incorporation  have  been 
prepared,  subscribed,  and  executed  in  accordance 
with  the  provisions  of  sections  two  hundred  and 
ninety  and  two  hundred  and  ninety-two  of  the 
Civil  Code,  and  such  original  articles  filed  by  error 
or  inadvertence  with  the  clerk  of  a  county  other 
than  that  named  in  the  articles  of  incorporation  as 
the  county  in  which  the  principal  place  of  business 
is  to  be  transacted,  and  the  Secretary  of  State  shall 
have  issued  a  certificate  of  incorporation  based  on 
Civ.    Code-lO 


§  363  CORPORATE   POWERS.  110 

a  certified  copy  of  such  origiual  articles  of  incor- 
poration, any  stockholder  or  director  of  such  cor- 
poration may  petition  the  Superior  Court  of  the 
county  in  which  said  original  articles  of  incorpora- 
tion Avere  filed  for  an  order  to  withdraw  such  ori- 
ginal articles  of  incorporation,   and  file  in   place 
thereof  a  certified  copj^  of  the  copy  thereof  on  file 
in  the  otfice  of  the  Secretary  of  State.     Such  peti- 
tion must  be  verified,  and  must  state  clearly  the 
facts,  showing  that  such  articles  of  incorporation 
were  tiled  by  inadvertence  and  mistalie;  and  notice 
of  the  hearing  of  said  petition  must  be  given  for 
at  least  ten  days  before  the  day  of  hearing,  by 
publication  in  a  newspaper  published  in  the  coun- 
ty where  such  petition  is  filed.     Upon  the  day  set 
for  hearing  the  petition  the  Superior  Court  may 
grant  an  order  allowing  such  original  articles  of 
incorporation  to  be    withdrawn,   and    a  certified 
copy  of  the  copy  in  the  otfice  of  the  Secretary  of 
State  in  the  place  thereof  filed;  and  the  original 
articles  of  incorporation  must  be  filed  within  ten 
days  thereafter  in  the  county  in  which  the  prin- 
cipal place   of   business    is   to   be  transacted,   as 
stated  in  such  articles  of  incorporation,  and  a  cer- 
tified copy  of  the  order  allowing  such  action  must 
be  filed  with  the  certified  copy  in  the  office  of  the 
Secretary  of  State,  after  which  said  corporation 
shall  be  entitled  to  all  rights  and  privileges  of  a 
])rivate  corporation,  and  the  title  to  any  property 
it  may  have  previously  acquired  shall  not  be  af- 
fected by  reason  of  the  failure  to  file  the  original 
articles    of    incorporation  in     the    first     instance. 
[New  section  approved  March  19,  1889;  Stats.  1889, 
p.  332.     In  effect  immediately.] 


Ul  CORPORATE   POWERS.  §§  377,  378 

ARTICLE  II. 

RECORDS. 

§  377.     Records  — of  what,   and  how  kept. 

§  378.     Other  recoids  to  be  kept  by  corporations  for  profit, 
and  others. 

§  377.  All  corporations  for  profit  are  required 
to  keep  a  record  of  all  their  business  transactions; 
a  journal  of  all  meetings  of  their  directors,  mem- 
bers, or  stockholders,  with  the  time  and  place  of 
holding  the  same,  whether  regular  or  special,  and 
if  special,  its  object,  how  authorized,  and  the  no- 
tice thereof  given.  The  record  must  embrace 
every  act  done  or  ordered  to  be  done;  who  were 
present,  and  who  absent;  and,  if  requested  by  any 
director,  member,  or  stockholder,  the  time  shall 
be  noted  when  he  entered  the  meeting  or  obtained 
leave  of  absence  therefrom.  On  a  similar  request 
the  ayes  and  noes  must  be  taken  on  any  proposi- 
tion, and  a  record  thereof  made.  On  similar  re- 
quest, the  protest  of  any  director,  member,  or 
stockholder,  to  any  action  or  proposed  action,  must 
be  entered  in  full— all  such  records  to  be  open  to 
the  inspection  of  any  director,  member,  stock- 
holder, or  creditor  of  the  corporation. 

Refusal  to  permit  inspection:  See  Penal  Code, 
sees.  5G5,  5G9. 

§  378.  In  addition  to  the  records  required  to  be 
kept  by  the  preceding  section,  corporations  for 
profit  must  keep  a  book,  to  be  known  as  the  "Stock 
and  Transfer  Book,"  in  which  must  be  kept  a  rec- 
ord of  all  stock:  the  names  of  the  stockholders,  or 
members,  alphabetically  arranged;  installments 
paid  or  unpaid;  assessments  levied  and  paid  or  un- 
paid; a  statement  of  every  alienation,  sale,  or 
transfer  of  stock  made,  the  date  thereof,  and  by 
and  to  whom ;  and  all  such  other  records  as  the  by- 


§§  382,  383  CORPORATE   POWERS.  112 

laws  prescribe.  Corporations  for  religious  and 
benevolent  purposes  must  provide  in  their  by-laws 
for  such  records  to  be  kept  as  may  be  necessary. 
Such  stocli  and  transfer  book  must  be  kept  open 
to  the  inspection  of  any  stockholder,  member,  or 
creditor. 

See  acts  concerning    Statements   by  Banks  and 
Bankers,  Appendix,  p.  71G  et  seq. 


ARTICLE   III. 

EXAMINATION  OF  CORPORATIONS,  ETC. 

§  382.     Examination   into  affairs   of  corporation,   how  made 

by  omceis  of  Slate. 
§  383.     Examination  made  by  tho  legislature. 
§  384.    Chapter  and  article  may  be  repealed. 

§  382.  The  attorney  general  or  district  attor- 
ney, whenever  and  as  often  as  required  by  the 
governor,  must  examine  into  the  affairs  and  con- 
dition of  any  corporation  in  this  State,  and  re-, 
port  such  examination,  in  writing,  together  with  a 
detailed  statement  of  facts,  to  the  governor,  who 
must  lay  the  same  before  the  legislature;  and  for 
that  purpose  tlie  attorney  general  or  district  attor- 
ney may  administer  all  necessary  oaths  to  the  di- 
rectors and  officers  of  any  corporation,  and  may 
examine  them  on  oath  in  relation  to  the  affairs  and 
condition  thereof,  and  may  examine  the  books,  pa- 
pers, and  documents  belonging  to  such  corpora- 
tion, or' appertaining  to  its  affairs  and  condition. 

Permitting  inspection  of  books:  See  Penal  Code, 
sec.  565. 

§  383.  The  legislature,  or  either  branch  thereof, 
may  examine  into  the  affairs  and  condition  of  any 
corporation  in  this  State  at  all  times;  and,  for  that 
purpose,  any  conmilttee  appointed  by  the  legisla- 
ture, or  eitlier  branch  thereof,  may  administer  all 
necessary  oaths    to   the    directors,    oflScers,   and 


113  CORPORATE   POWERS.  §  384 

stockholders  of  siicli  corporation,  and  may  exam- 
ine them  on  oath  in  relation  to  the  affairs  and  con- 
dition thereof;  and  may  examine  the  safes,  books, 
papers,  and  docnmeuts  belonging  to  such  corpora- 
tion, or  pertaining  to  its  affairs  and  condition,  and 
compel  the  production  of  all  keys,  books,  papers, 
and  documents  by  summary  process,  to  be  issued 
on  application  to  any  court  of  record  or  any  judge 
thereof,  under  such  rules  and  regulations  as  the 
court  may  prescribe. 

Permitting  inspection  of  books:  See  Fenal  Code, 
sec.  5G5. 

§  384.  The  legislature  may  at  any  time  amend 
or  repeal  this  part,  or  any  title,  chapter,  article,  or 
section  thereof,  and  dissolve  all  corporations  cre- 
ated thereunder;  but  such  amendment  or  repeal 
does  not,  nor  does  the  dissolution  of  any  such  cor- 
poration, take  away  or  impair  any  remedy  given 
against  any  such  corporation,  its  stockholders,  or 
officers,  for  any  liability  which  has  been  previous- 
ly incurred. 

Note-  Amending  or  repealing  charter  of  corpora- 
tions.-In  the  constitution  of  California,  in  force 
when  tliis  code  was  adopted,  was  the  following  sec- 
tion: "Corporations  may  be  formed  under  general 
laws,  but  shall  not  be  created  by  special  act  except 
for  municipal  purposes.  All  general  laws  and  spe- 
cial act.s  passed  pursuant  to  this  section  may  be  al- 
tered from  time  to  time  or  repealed":  Art.  4,  sec. 
31.  The  constitution  of  1879.  art.  12,  sec.  1,  preserves 
this  section  in  the  following  language:  "Corpora- 
lions  may  be  formed  under  general  laws,  but  shall 
not  be  created  by  special  act.  All  laws  now  in 
force  in  this  state  concerning  corporations,  and  all 
laAvs  that  may  be  hereafter  passed  pursuant  to 
this  section  may  be  altered  from  time  to  time  or 
repealed."  The  Code  Commissioners  quote  the  sec- 
tion from  the  former  Constitution,  and  sav:  "Sec- 


§§  388,  389  CORPORATE   POWERS.  114 

tion  384  was  inserted  in  this  code  out  of  an  abund- 
ance of  caution,  and  not  because  it  was  deemed 
necessary,  for  there  can  be  but  little  donbt  that 
the  constitutional  provision  quoted  at  the  head  of 
this  note  enters  into  and  becomes  a  part  of  the 
contract,  thereby  reserving  to  the  legislature  the 
right  to  repeal,  impair,  or  alter  any  law  relative 
to  the  formation  of  corporations,  even  though  the 
result  reached  would  be  the  dissolution  of  every 
corporation  organized  within  the  State." 


ARTICLE   IV. 

JUDGMENT     AGAINST     AND     SALE     OF     CORPORATE 
PROPERTY. 

§  388.  Franchise  may  be  treated  as  property,  and  sold  uu- 

d  V  execution. 

§  3S9.  Purchaser  to  transact  business   of  corporation. 

§  3S0.  Purchaser  may  recover  penalties,  &c. 

I  391.  Corroration  to  retain  powers  after  sale. 

§  392.  Redi^mplion  of  franchise. 

§  393.  When   proceedings   under  execution   may  be   had. 

§  388.  For  the  satisfaction  of  any  judgment 
against  any  person,  company,  or  corporation  au- 
thorized to  receive  tolls,  the  franchise,  and  all  the 
rights  and  privileges  thereof,  may  be  levied  upon 
and  sold  under  execution,  in  the  same  manner, 
and  with  the  same  effect,  as  any  other  property. 
[Approved  February  23,  1897,  c.  20.] 

Seizure  on  execution:  See  Cede  Civ.  Proc,  sec. 
688. 

§  389.  The  purchaser  at  the  sale  must  receive 
a  certiticate  of  purchase  of  the  franchise,  and  be 
immediately  let  into  the  possession  of  all  prop- 
erty necessary  for  the  exercise  of  the  powers  and 
the  receipt  of  the  proceeds  thereof,  and  must  there- 
after conduct  the  business  of  such  corporation, 
with  all  its  powers  and  privileges,  and  subject  td 
all  its  liabilities  until  the  redemption  of  the  same, 
as  hereinafter  provided. 


115  CORPORATE    POWERS.  §§  390-393 

§  390.  The  purchaser  or  his  assignee  is  entitled 
to  recover  any  penalties  imposed  by  law  and  re- 
coverable by  the  corporation  for  an  injury  to  the 
franchise  or  property  thereof,  or  for  any  damages 
or  other  cause,  occurring  during  the  time  he  holds 
the  same,  and  may  use  the  name  of  the  corpora- 
tion for  the  purpose  of  any  action  necessary  to  re- 
cover the  same.  A  recovery  for  damages  or  any 
penalties  thus  had  is  a  bar  to  any  subsequent  ac- 
tion by  or  on  behalf  of  the  corporation  for  the 
same. 

§  391.  The  corporation  whose  franchise  is  sold, 
as  in  this  article  provided,  in  all  other  respects  re- 
tains the  same  powers,  is  bound  to  the  discharge 
of  the  same  duties,  and  is  liable  to  the  same  pen- 
alties and  forfeitures,  as  before  such  sale. 

§  392.  The  corporation  may,  at  any  time  with- 
in one  year  after  such  sale,  redeem  the  franchise, 
by  paying  or  tendering  to  the  purchaser  thereof 
the  sum  paid  therefor,  with  ten  per  cent  interest 
thereon,  but  without  any  allowance  for  the  toll 
which  he  may  in  the  meantime  have  received; 
and  upon  such  payment  or  tender  the  franchise 
and  all  the  rights  and  privileges  thereof  revert  and 
belong  to  the  corporation,  as  if  no  such  sale  had 
been  made. 

§  393.  The  sale  of  any  franchise  under  execu- 
tion must  be  made  in  the  county  in  which  the 
corporation  has  its  principal  place  of  business,  or 
in  which  the  property,  or  some  portion  thereof, 
upon  which  the  taxes  are  paid,  is  situated. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  209.    In  effect  July  1,  1874.] 


§§  399-401  EXTENSION,  ETC.,   OP  CORPORATIONS.        116 

CHArTER  IV. 

EXTENSION  AND  DISSOLUTION   OF  CORPORATIONS. 

§  399.    Proceedings   to   disincorporate. 

§  400.     On  Gissoiution,  dirt-ctors  to  he  trustees  for  creditors. 

§  401.  Any  corporation  may  extend  its  corporate  existence, 
how. 

§  402.  How  corporations  may  continue  their  existence.  (Re- 
pealed.) 

§  403.  Title  I.  to  apply  to  all  corporations  with  certain  ex- 
ceptions. 

§  399.  The  dissolution  of  corporations  is  pro- 
vided for: 

1.  If  invoUintarj^— in  Chapter  V.  of  Title  X., 
Part  II.,  of  the  Code  of  Civil  Procedure.  See  Code 
Civ.  Proc,  sees.  802,  227. 

2.  If  voluntary— In  Title  VI.,  Part  III.,  of  the 
Code  of  Civil  Procedure.     [Sees.  1227-1233.] 

Act  providing  for  dissolution  of  savings  banks, 
trust  companies  and  banlis  of  deposit:  See  post, 
Appendix,  p.  721. 

§  400.  Unless  other  persons  are  appointed  by 
the  court,  the  directors  or  managers  of  the  affairs 
of  such  corporation  at  the  time  of  its  dissolution 
are  trustees  of  the  creditors  and  stoclcliolders  or 
members  of  the  corporation  dissolved,  and  have 
full  power  to  settle  the  affairs  of  the  corporation. 

§  401.  Every  corporation  formed  for  a  period 
less  than  fifty  years  may,  at  any  time  prior  to  the 
expiration  of  the  term  of  its  corporate  existence, 
extend  such  term  to  a  period  not  exceeding  fifty 
years  from  its  formation.  Such  extension  may  be 
made  at  any  meeting  of  the  stoclvholders  or  mem- 
bers, called  by  the  directors  expressly  for  consid- 
ering the  subject  if  voted  by  stocl^holders  repre- 
senting two-thirds  of    the  capital  stock;  or  by  two- 


U7        EXTENSION,  ETC.,  OF  CORPORATIONS.  §§  402,  403 

thirds  of  the  members;  or  may  be  made  upon  the 
written  assent  of  that  number  of  stockholders  or 
members.  A  certificate  of  the  proceedings  of  the 
meeting  upon  such  vote,  or  upon  such  assent,  shall 
be  signed  by  the  chairman  and  secretary  of  the 
meeting  and  a  majority  of  the  directors,  and  be 
filed  in  the  office  of  the  county  clerk,  where  the 
original  articles  of  incorporation  were  filed,  aad 
a  certified  copy  thereof  in  the  office  of  the  secre- 
tary of  state,  and  thereupon  the  term  of  the  corpo- 
ration shall  be  extended  for  the  specified  period. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  209.    In  effect  July  1,  1874.] 

§  402.  Repealed  by  act  approved  March  30, 
1874;  Amendments  1S73-4,  209.  In  effect  July  1, 
1874.] 

§  403.  The  provisions  of  this  title  are  applica- 
ble to  every  corporation,  unless  such  corporation 
is  excepted  from  its  operation,  or  unless  a  special 
provision  is  made  in  relation  thereto  inconsistent 
with  some  provision  in  this  title,  in  which  case  the 
special  provision  prevails. 

See  Act  of  April  1,  1872,  requiring  Foreign  Cor- 
porations to  designate  Resident  upon  whom  Pro- 
cess may  be  served,  post,  Appendix,  p.  764. 


§§  414,  415  INSURANCE    CORPORATIONS.  118 

TITLE   II. 
INSURANCE    CORPORATIONS. 

Chapter    I.     General  Provisions,  §§  414-419. 

II.    Fire  and  Marine  Insurance  Corpora- 
tions, §§  424-430. 
III.    Mutual  Life,  Health,  and  Accident  In- 
surance Corporations,  §§  437-458. 

CHAPTER  I. 

GENERAL  PROVISIONS. 

§  414.  Subscriptions  to  capital  stock  opened,  and  how  col- 
lected. 

§  415.    Purchase  and  conveyance  of  real  estate. 

§  416.    Policies,  how  issued  and  by  whom  signed. 

§  417.     Diviacnds,   of  what  and  when  declared. 

§  418.  Directors  liable  for  loss  on  insurance  in  certain 
cases. 

§  419.     Capital  to  be  at  least  two  hundred  thousand  dollars. 

§  420.    Exception,  capital  of  one  hundred  thousand  dollars. 

§  414.  Alter  the  Secretary  of  State  issues  the 
certiticate  of  incorporation,  as  provided  in  Article 
I.,  Chapter  I.,  Title  I.,  of  this  part,  the  directors 
named  in  the  articles  of  incorporation  must  pro- 
ceed in  the  manner  specitied,  or  in  their  by-laws, 
or  if  none,  then  in  such  manner  as  they  may  by 
order  adopt,  to  open  boolis  of  subscription  to  the 
capital  stoclv  then  unsubscribed,  and  to  secure 
subscriptions  to  the  full  amount  of  the  fixed  capi- 
tal; to  levy  assessments  and  installments  thereon, 
and  to  collect  the  same,  as  in  Chapter  II.  of  Title 
I.  provided. 

Insurance  in  general:   See  post,  sees.  2527-27G6. 

§  415.  No  insurance  corporation  must  purchase, 
hold,  or  convey  real  estate,  except  as  hereinafter 
set  forth,  to-wit: 

1.  Such  as  is  requisite  for  its  accommodation  in 
the  convenient  transaction  of  its  business,  not  ex- 
ceeding in  value  one  hundred  and  fifty  thousand 
dollars; 


U9  INSURANCE    CORPORATIONS.  §§  416,  417 

2.  Such  as  is  conveyed  to  it,  or  to  any  person  for 
it,  by  way  of  mortgage  or  in  trust,  or  otherwise,  to 
h^ecure  or  provide  for  the  payment  of  loans  pre- 
viously contracted,  or  for  moneys  due; 

3.  Such  as  is  purchased  at  sales  upon  deeds  of 
trust  or  judgments  obtained  or  made  for  such 
loans  or  debts: 

4.  Such  as  is  conveyed  to  it  in  satisfaction  of 
debts  previously  contracted  in  the  course  of  its 
dealings. 

All  such  real  estate  so  acquired,  which  is  not  re- 
quisite for  the  accommodation  of  such  corporation 
in  the  transaction  of  its  business,  must  be  sold 
and  disposed  of  within  five  years  after  such  cor- 
poration acquired  title  to  the  same.  No  such  real 
estate  must  be  held  for  a  longer  period  than  five 
years,  unless  the  corporation  first  procures  a  cer- 
tificate from  the  insurance  commissioner  that  the 
interest  of  the  corporation  will  suffer  materially 
by  a  forced  sale  of  such  real  estate,  in  which 
event  the  time  for  the  sale  may  be  extended  to 
such  time  as  the  insurance  commissioner  directs 
in  the  certificate. 

§  416.  All  policies  made  by  insurance  corpora- 
tions must  be  subscribed  by  the  president  or  vice 
president,  or  in  case  of  the  death,  absence,  or  dis- 
ability of  those  officers,  by  any  two  of  the  direc- 
tors, and  countersigned  by  the  secretary  of  the 
corporation.  All  such  policies  are  as  binding  and 
obligatory  upon  the  corporation  as  if  executed 
over  the  corporate  seal. 

§  417.  The  directors  of  every  insurance  corpo- 
ration, at  such  times  as  their  by-laws  provide, 
must  make,  declare,  and  pay  to  the  stocl^holders 
dividends  of  so  much  of  the  net  profits  of  the 
corporate  business  and  interest  on  capital  invested 
as  to  them  appears  advisable;  but  the  moneys  re- 
ceived and  notes  taken  for  premium  on  risks  which 


§§  418,  419  INSURANCE    CORPORATIONS.  120 

are  undetermined  and  outstanding  at  the  time  of 
making  the  dividend  must  not  be  treated  as  prof- 
its, nor  divided,  except  as  provided  in  Chapter  II. 
of  this  title. 
Declaring  dividends:   See  ante,  sec.  309. 

§  418.  If  any  insurance  corporation  is  under 
liabilities  for  losses  to  an  amount  equal  to  its  cap- 
ital stock,  and  the  president  or  directors,  after 
knowing  the  same,  make  any  new  or  further  in- 
surance, the  estates  of  all  who  make  such  insur- 
ance, or  assent  thereto,  are  severally  and  jointly 
liable  for  the  amount  of  any  loss  which  takes 
place  under  such  insurance. 

§  419.  Every  company,  corporation,  or  associa- 
tion hereafter  formed  or  organized  under  the  laws 
of  this  State  for  the  transaction  of  business  in  fire, 
marine,  inland  navigation,  or  life  insurance,  must 
have  a  subscribed  capital  stock  equal  to  at  least 
two  hundred  thousand  dollars,  twenty-five  per 
cent  of  which  must  be  paid  in  previous  to  the  is- 
suance of  any  policy,  and  the  residue  within 
twelve  months  from  the  day  of  filing  the  certifi- 
cate of  incorporation.  No  person,  corporation,  or 
association  organized  or  formed  under  the  laws  of 
any  otlier  State  or  country,  as  a  stock  company, 
must  transact  any  such  insurance  business  in  this 
State,  unless  such  person,  corporation,  or  associa- 
tion has  a  paid-up  capital  stock  equal  to  at  least 
two  hundred  thousand  dollars  in  available  cash 
assets,  over  and  above  all  liabilities  for  losses  re- 
ported, expenses,  taxes,  and  reinsurance  of  all  out- 
standing risks,  as  provided  in  section  six  hundred 
and  two  of  the  Political  Code  of  this  State.  Nor 
must  any  person,  corporation,  or  association,  or- 
ganized or  formed  under  the  laws  of  any  other 
State  or  country  as  a  mutual  insurance  company, 
transact  any  such  insurance  business  In  this  State, 
unless   such   person,    corporation,    or  association 


121  INS'URAXCE    CORPORATIONS.  §  420 

possesses  available  cash  assets  equal  to  at  least 
t.vro  himdred  thousand  dollars,  over  and  above  all 
liabilities  for  losses  reported,  expenses,  taxes,  and 
reinsurance  of  all  outstanding  risks,  as  provided 
In  said  section  six  hundred  and  two  of  the  Politi- 
cal Code  of  this  State.  [Amendment  approved 
April  1,  1878:  Amendments  1877-8,  80.  In  effect 
April  1,  1878.] 

§  420.  Every  company,  corporation,  or  associa- 
tion, hereafter  formed  or  organized  under  the 
laT\'s  of  this  State  for  the  transaction  of  business 
in  any  kind  of  insurance  not  enumerated  in  sec- 
tion four  hundred  and  nineteen  of  the  Civil  Code 
must  have  a  subscribed  capital  stock  equal  to  at 
least  one  hundred  thousand  dollars,  which  must 
be  paid  in  at  the  times  and  in  the  manner  pre- 
scribed for  the  payment  of  the  capital  stock  of  a 
corporation  organized  under  section  four  hundred 
and  nineteen  of  said  Civil  Code.  No  company, 
corporation,  or  association,  formed  or  organized 
under  the  laws  of  any  other  State  or  country  as  a 
stock  company,  must  transact  any  such  insurance 
business  iu  this  State  without  a  paid-up  capital 
stock  of  not  less  than  one  hundred  thousand  dol- 
lars in  available  cash  assets,  over  and  above  all 
liabilities  for  losses  reported,  expenses,  taxes,  and 
reinsurance  of  all  outstanding  risks,  as  provided 
in  section  six  hundred  and  two  of  the  Political 
Code  of  this  State.  Nor  must  any  company,  cor- 
poration, or  association,  formed  or  organized  un- 
der the  laM's  of  any  other  State  or  country  as  a 
mutual  insurance  company,  transact  any  such  in- 
surance business  in  this  State  unless  such  com- 
pany, corporation,  or  association  possesses  avail- 
able cash  assets  equal  to  at  least  one  :mndred 
thousand  dollars  over  and  above  all  liabilities  for 
losses  reported,  expenses,  taxes,  and  reinsurance 
of  all  outstanding  risks,  as  provided  in  said  sec- 
Civ.  Code— U 


S§  424,  425  INSURANCE  CORPORATIONS.  122 

tion  six  hundred  and  two  of  the  Political  Code  of 
this  State.  [New  section  approved  April  1,  1878; 
Amendments  1877-8,  SO.    In  effect  April  1,  1878.] 


CHAPTER  II. 

FIRE  AND  MARINE  INSURANCE  CORPORATIONS. 

§  424.    Payment  of  subscriptions.     Capital  to  be  all  paid  in 

twelve  months. 
§  425.     Certificate  of  capital   stock   paid  up  to  be  filed,   and 

when. 
§  426.     Property  which   may   be   insured, 
f  427.     Funds  may  be  invested,  how. 
§  428.     Rate  of  risk. 

§  4^9.    Amounts  to  be  reserved  before  making  dividends. 
§  430.     Reservation    by    companies    with    less    than    $200,000 

capit':-!. 
§  431.    Amounts  to  be  reserved  by  life  insurance  companies. 
§  432.     Corporations  for  insuring  titles  to  real  estate. 

§  424.  The  entire  capital  stock  of  every  fire  or 
marine  insurance  corporation  must  be  paid  up  in 
cash  within  twelve  months  from  the  filing  of  the 
articles  of  incorporation,  and  no  poMcy  of  insur- 
ance must  be  issued  or  rislv  talvcn  until  twenty- 
five  per  cent  of  the  whole  capital  stocli  is  paid  up. 

Fire  insurance:    See  post,  sees.  2752  et  seq. 

Marine  insurance:    See  post,  sees.  2655  et  seq. 

County  fire  insurance  companies,  act  providing 
for:  See  post.  Appendix,  p.  787. 

§  425.  The  president  and  a  majority  of  the  di- 
rectors must  within  thirty  days  after  the  pay- 
ment of  the  twenty-five  per  cent  of  the  capital 
stock,  and  also  within  thirty  days  after  the  pay- 
ment of  the  last  installment  or  assessment  of  the 
capital  stock  limited  and  fixed,  prepare,  subscribe, 
and  swear  to  a  certificate  setting  forth  the  amount 
of  the  fixed  capital  and  the  amount  thereof  paid 
up  at  the  times  respectively  in  this  section  named, 
and  file  the  same  in  the  ofiice  of  the  county  clerk 
of  the  county  where  the  principal  place  of  busi- 
ness of  the  corporation  is  located,  and  a  duplicate 


123  INSURANCE   CORPORATIONS.         §§  426,  427 

thereof,    similarly    exec-iited,    with  the  insurance 
commissioner. 

§  426.  Every  corporation  formed  for  fire  or  ma- 
rine insurance,  or  both,  may  make  insurance  on 
all  insurable  interests  within  the  scope  of  its  arti- 
cles of  incorporation,  and  may  cause  itself  to  bo 
reinsured. 

Insurable  interest  defined:    See  sec.  2546,  post. 

§  427.  Corporations  organized  subsequent  to 
April  first,  eighteen  hundred  and  seventy-eight, 
under  the  laws  of  tliis  State,  for  the  transaction  of 
business  in  any  Ivind  of  insurance,  may  invest 
their  capital  and  accumulations  in  the  following 
named  securities: 

1.  In  tlie  purchase  of  or  loans  upon  interest- 
bearing  bonds  of  the  United  States  Government. 

2.  In  the  purchase  of  or  loans  upon  interest- 
bearing  bonds  of  any  of  the  States  of  the  United 
States,  not  in  default  for  interest  on  such  bonds. 

3.  In  the  purchase  of  or  loans  upon  interest- 
bearing  bonds  of  any  of  the  counties  and  incorpo- 
rated cities  and  towns  of  the  States  of  California 
and  Oregon,  not  in  default  of  interest  on  such 
bonds. 

4.  In  loans  upon  unincumbered  real  property, 
worth  at  least  one  hundred  per  cent  more  than 
the  amount  loaned;  or  upon  merchandise  or  cereals 
in  Avarehouse,  but  in  no  instance  shall  such  loan 
be  made  in  excess  of  seventy-five  per  cent  of  the 
security  talcen. 

5.  Corporations  engaged  in  the  business  of  in- 
suring titles  to  real  estate  may,  after  the  invest- 
ment of  one  hundred  thousand  (100,000)  dollars  in 
the  manner  provided  for  in  subdivisions  one,  two, 
three,  and  four  of  this  section,  invest  an  amount 
not  exceeding  fifty  per  cent  of  their  subscribed 

i|  capital  stock  in  the  preparation  or  purchase  of  the 
i'l  materials  or  plant  necessary  to  enable  them  to  en- 
el  gage  in  such    business;  and    such    materials  or 


§  428  INSURANCE  CORPORATIONS.  124 

plant  shall  be  deemed  an  asset,  valued  at  the 
actual  cost  thereof,  in  all  statements  and  proceed- 
ings required  by  law  for  the  ascertainment  and 
determination  of  tlie  condition  of  such  corpora- 
tions. 

6.  Corporations  organized  for  and  engaged  in 
the  business  of  fire  and  marine  insurance  may, 
after  the  investment  of  two  hundred  thousand 
(200,000)  dollars,  in  tlie  manner  provided  in  sub- 
divisions one,  two,  three,  and  four  of  this  section, 
invest  the  balance  of  their  capital,  and  any  ac- 
cumulations, in  interest-bearing  first  mortgage 
bonds  of  any  corporations  (except  mining  com- 
panies), not  in  default  of  interest,  organized  and 
carrying  on  business  under  the  laws  of  any  State 
of  the  United  States;  provided,  that  a  two-thirds 
vote  of  all  the  directors  of  such  corporations  shall 
approve  such  investment.  It  shall  be  the  duty  of 
the  officers  of  such  corporation  to  report  quarterly, 
on  the  first  days  of  January,  April,  July,  and  Oc- 
tober of  each  year,  to  the  Insurance  Commissioner, 
a  list  of  such  investments  so  made  by  them;  and 
the  Insurance  Commissioner  may,  if  such  invest- 
ments, or  any  of  them,  seem  injudicious  to  him, 
require  the  sale  of  the  same.  But  no  investment 
in  the  securities  named  in  subdivisions  one,  two, 
three,  and  six  of  this  section,  must  be  made  in 
an  amount  exceeding  the  raarlcet  value  of  such 
securities  at  the  dnte  of  such  investment.  [Ap- 
proved March  5,  1887;  Stats.  1887,  p.  22.  In  effect 
immediately.] 

§  428.  Fire  and  marine  insurance  corporations 
must  never  tal^e,  on  any  one  rislv,  whether  it  is  a 
marine  insurance  or  an  insurance  against  fire,  a 
sum  exceeding  one  tenth  part  of  their  capital  actu- 
ally paid  in,  and  intact  at  the  time  of  talking  such 
rislv,  without  reinsuring  the  excess  above  one 
tenth.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  210.   In  effect  July  1,  1874.] 


125  INSURANCE    CORPORATIONS.  §§  429,  430 

§  429.  No  corporation  forraed  subsequent  to 
April  first,  eighteen  hundred  and  seventy-eight, 
under  the  laws  of  this  State,  and  transacting  tire, 
marine,  inland  navigation  insurance  business,  or 
insurance  provided  for  by  section  four  hundred 
and  twenty  (420)  of  this  Code,  except  insurance  of 
the  title  to  real  property,  must  make  any  dividends 
except  from  profits  remaining  on  hand  after  re- 
taining unimpaired: 

1.  The  entire  subscribed  capital  stock. 

2.  All  the  premiums  received  or  receivable  on 
outstanding  marine  or  inland  risks,  except  marine 
time  risks.    ■ 

3.  A  fund  equal  to  one  half  of  the  amount  of  all 
premiums  on  all  other  risks  not  terminated  at 
the  time  of  making  such  dividend. 

4.  A  sum  sufficient  to  pay  all  losses  reported  or 
in  course  of  settlement,  and  all  liabilities  for  ex- 
penses and  taxes.  [Amendment  approved  March 
5,  1887;  Stats.  1887,  p.  23.  In  effect  immediately.] 

Declaring  dividends  generally:  See  ante,  sec. 
300.  See  also  ante,  sec.  417,  as  to  declaring  divi- 
dends by  insurance  companies  generally. 

§  430.  No  fire  or  marine  insurnnce  corporation, 
with  a  subscribed  capital  of  less  than  two  hundred 
thousand  dollars,  must  declare  any  dividends,  ex- 
ce])t  from  profits  remaining  on  hand  after  reserv- 
ing: 

1.  A  sum  necessary  to  form,  with  the  subscribed 
capital  stock,  the  aggregate  sum  of  two  hundred 
thousand    dollars; 

2.  All  the  premiums  received  or  receivable  on 
outstanding  marine  or  inland  risks,  except  marine 
time  risks; 

3.  A  fund  equal  to  one  half  the  amount  of  all 
premiums  on  fire  risks  and  marine  time  risks  not 
terminated  at  the  time  of  making  such  dividend; 

4.  A  sum  sufficient  to  pay  all  losses  reported  or 


§§  431,  432  INSURANCE    CORPORATIONS.  123 

in  course  of  settlement,  and  all  liabilities  for  ex- 
penses and  taxes. 

Act  conferring-  power  to  establish  fire  patrol: 
See  post,  Appendix,  p.  766. 

§  431.  No  corporation  formed  under  the  laws 
of  this  State,  and  transacting  life  insurance  busi- 
ness, must  make  any  dividends,  except  from  prof- 
its remaining  on  hand  after  retaining  unimpaired: 

1.  The  entire  capital  stock; 

2.  A  sum  sufficient  to  pay  all  losses  reported  or 
in  course  of  settlement,  and  all  liabilities  for  ex- 
penses and  taxes; 

3.  A  sum  sufficient  to  reinsure  all  outstanding 
policies  as  ascertained  and  determined  upon  the 
basis  of  the  American  experience  table  of  mor- 
tality, and  interest  at  the  rate  of  four  and  one  half 
per  cent  per  annum.  [New  section  afDproved  April 
1,  1878;  Amendments  1877-8,  81.  In  effect  April  1, 
1878.] 

Life  and  health  insurance:  See  post,  sees.  2762 
et  seq. 

§  432.  Corporations  transacting  business  in  in- 
suring titles  to  real  estate  shall  annually  set  apart 
a  sum  equal  to  twenty-five  per  cent  of  their  pre- 
miums collected  during  the  year,  which  sum  shall 
be  allowed  to  accumulate  until  a  fund  shall  have 
been  created  amounting  to  ten  per  cent  of  the  sub- 
scribed capital  stock.  Such  fund  shall  be  main- 
tained as  a  further  security  to  policy  holders,  and 
shall  be  known  as  the  surplus  fund;  and  if  at 
any  time  such  fund  shall  be  impaired  by  reason  of 
a  loss,  the  amount  by  which  it  may  be  impaired 
shall  be  restored  in  the  manner  hereinabove  pro- 
vided for  its  accumulation.  The  reporting  of  a  loss 
shall  be  deemed  an  impairment  of  such  fund  for 
the  purposes  of  this  section.  Such  corporal  ion  must 
not  make  any  dividends  except  from  profits  re- 
maining on  hand  after  retaining  unimpaired: 

1.    The  entire  subscribed  capital  stock; 


127  INSURANCE    CORPORATIONS.  §  437 

2.  The  amount  owing  to  the  surplus  fund,  un- 
der the  provisions  of  this  section; 

3.  A  sum  sufficient  to  pay  all  losses  reported,  or 
in  course  of  settlement,  which  shall  be  in  excess 
of  the  surplus  fund,  and  all  liabilities  for  ex- 
penses and  taxes.  [Amendment  approved  March 
5,  1887;  Stats.  1887,  p.  23.    In  effect  immediately.] 


CHAPTER  III. 

MUTUAL  LIFE,  HEALTH,  AND  ACCIDENT  INSURANCE 
CORPORATIONS. 

§  437.  Capital  stock.     Guarartee  fund. 

§  438.  Of  what  guarantee  fund  .shall  consist. 

§  439.  What  constitutes,   and  deficiency  in  fixed   capital. 

§  440.  Declaration  of  fixed  capital  to  be  filed. 

§  441.  Guarantee  notes  and  interest,  how  disposed  of. 

§  442.  Insured   to   be  entitled  to   vote,   when. 

§  443.  May  invest  in  what  securities. 

§  444.  Numb'  r  of  directors  may  be  altered,   how. 

§  445.  Limitations  to  the  holding  cf  stock  and  in  other  par- 
ticulars may  be  provided  for  iu  by-laws. 

§  446.  Premiums,   how  payable. 

§  447.  Valuation  of  policies  outstanding,  when;  how  esti- 
mated. 

§  448.  No  stamp  required  on  accident  insurance  contract. 

§  449.  Valuation  of  policies,  retaliatory  provisions. 

§  450.  Policy  to  contain  what  evidence. 

§  451.  Fraternal  societies  exempt  from  insurance  laws. 

§  452.  Policies  continued  in  force. 

§  437.  Every  corporation  formed  for  the  pur- 
pose of  mutual  insurance  on  the  lives  or  health  of 
persons,  or  against  accidents  to  persons  for  life 
or  any  fixed  period  of  time,  or  to  purchase  and  sell 
annuities,  must  have  a  capital  stock  of  not  less 
than  one  hundred  thousand  dollars.  It  must  not 
make  any  insurance  upon  any  risk  or  transact  any 
other  business  as  a  corporation  until  its  capital 
stock  is  fully  paid  up  in  cash,  nor  until  it  has  also 
obtained  a  fund,  to  be  known  as  a  "guarantee 
fund,"  of  not  less  than  two  hundred  and  fifty 
thousand  dollars,   as   is  hereinafter  provided.     If 


§  438  INSURANCE    CORPORATIONS.  128 

more  than  the  requisite  amount  is  subscribed,  the 
stocli  must  be  distributed  pro  rata  among  the  sub- 
scribers. Any  subscription  may  be  rejected  by 
the  board  of  directors  or  the  committee  thereof, 
either  as  to  the  whole  or  any  part  thereof,  and 
must  be,  so  far  as  rejected,  without  effect. 

Act  rehiting  to  life,  health,  accident  and  annuity 
or  endowment  insurance:  See  post,  Appendix,  784. 

Incorporation  of  mutual  insurance  companies: 
See  post.  Appendix,  785. 

§  438.  The  guarantee  fund  mentioned  in  the 
preceding  section  must  consist  of  the  promissory 
notes  of  solvent  parties,  approved  by  the  board  of 
directors  and  by  each  other,  payable  to  the  corpo- 
ration or  its  order,  and  at  such  times,  in  such 
modes,  and  in  such  sums,  with  or  without  interest, 
and  conformable  in  all  other  respects  to  such  re- 
quirements as  the  board  of  directors  prescribe; 
but  Lhe  amount  of  the  notes  given  by  any  one  per- 
son must  not  exceed  in  the  whole  the  sum  of  five 
thousand  dollars,  exclusive  of  interest.  Such  notes 
must  be  payable  absolutely  and  at  the  option  of 
the  corporation;  they  must  be  negotiable,  and  may 
be  indorsed  and  transferred,  or  converted  into 
cash,  or  otherwise  dealt  with  by  the  corporation, 
at  its  discretion,  without  reference  to  any  contin- 
gency of  losses  or  expenses.  Such  notes,  or  the 
proceeds  thereof,  must  remain  with  the  corpora- 
tion as  a  fund  for  the  better  security  of  persons 
dealing  with  it,  and  constitute  the  assets  of  the 
corporation,  liable  for  all  its  debts,  obligations, 
and  indebtedness  next  after  its  assets  from  pre- 
miums and  other  sources,  exclusive  of  capital 
stocli,  until  the  net  earnings,  over  and  above  its 
expenses,  losses,  and  liabilities,  shall  have  accu- 
mulated in  cash,  or  securities  in  which  the  net 
earnings  have  been  invested,  to  a  sum  which,  with 


129  INSURANCE    CORPORATIONS.  §§  439,  MO 

the  capital  stock,  is  equal  to  the  aggregate  of  the 
original  amounts  of  the  guarantee  fund  and  of 
the  capital  stock. 

§  439.  The  sum  accumulated  as  provided  in  the 
preceding  section,  together  with  the  capital  stock, 
shall  become  and  remain  the  fixed  capital  of  the 
corporation,  not  subject  to  division  among  the 
stockholders  or  parties  dealing  with  it,  or  to  be 
expended  in  any  manner  otherwise  than  may  be 
required  in  payment  of  the  corporation's  debts  and 
actual  expenses,  until  the  business  of  the  corpora- 
tion is  closed,  its  debts  paid,  and  its  outstanding 
policies  and  obligations  of  every  kind  canceled  or 
provided  for;  and  if  from  any  cause  a  deficiency 
at  any  time  occurs  in  such  fixed  capital,  no  further 
division  of  profits  must  take  place  until  such  de- 
ficiency has  been  made  up. 

§  440.  Whenever  the  fixed  capital  of  the  cor- 
poration is  obtained  as  hereinbefore  provided,  the 
president  of  the  corporation  and  its  actuary,  or  its 
secretary,  if  there  is  no  actuary,  must  make  a 
declaration  in  writing,  sworn  to  before  some  no- 
tary public,  of  the  amount  of  such  fixed  capital, 
and  of  the  particular  kinds  of  property  compos- 
ing the  same,  with  the  nature  and  amount  of  each 
kind,  which  must  be  filed  with  the  original  arti- 
cles of  incorporation,  and  a  copy,  certified  by  the 
county  clerk,  must  be  published  for  at  least  four 
successive  weeks,  in  a  newspaper  published  in  the 
county  where  the  principal  business  of  the  corpo- 
ration is  situated.  Upon  the  filing  of  such  declar- 
ation the  guarantee  fund  is  discharged  of  its  obli- 
gations, and  all  notes  of  the  fund  remaining  in 
the  control  of  the  corporation,  and  not  affected  by 
any  lien  thereon,  or  claim  of  that  nature,  must 
be  surrendered  by  it  to  the  makers  thereof,  re- 
spectively, or  other  parties  entitled  to  receive  the 
same. 


§§  441,  442  INSURANCE    CORPORATIONS.  130 

§  441.  Until  the  guarantee  fund  is  disc-barged 
from  its  obligations,  as  provided  in  the  preceding 
section,  no  note  must  be  withdrawn  from  the  fund, 
unless  another  note  of  equal  solvency  is  substi- 
tuted therefor,  with  the  approval  of  the  board  of 
directors.  The  corporation  must  allow  a  commis- 
sion, not  exceeding  five  per  cent,  per  annum,  on  all 
su<'h  guarantee  notes  while  outstanding,  and  also 
interest  on  all  moneys  paid  on  such  notes  by  the 
parties  liable  thereon,  at  the  rate  of  twelve  per 
cent  per  annum,  payable  half  yearly  until  repaid 
by  the  corporation,  unless  the  current  rate  of  inter- 
est is  ditferent  from  this  amount,  in  which  case 
the  rate  payable  may,  from  time  to  time,  at  inter- 
vals of  not  less  than  one  year,  be  increased  or  re- 
duced by  the  board  of  directors,  so  as  to  conform 
to  tlie  current  rate.  [Amendment  approved  March 
30,  1874;  Amendments  187o-4,  210.  In  effect  July  1, 
1874.] 

§  442.  After  the  filing  of  the  declaration  of  the 
fixed  capital,  as  in  this  article  provided,  the  hold- 
ers of  policies  of  life  insurance  for  the  term  of  life, 
on  Avhich  the  premiums  are  not  in  default,  may 
vote  at  tlie  election  of  directors,  and  have  one  vote 
for  each  one  thousand  dollars  insured  by  their 
policies,  respectively. 

§  443.  The  number  of  directors  specified  in  the 
articles  of  incorporation  may  be  altered  from  time 
to  tiiue  during  the  existence  of  the  corporation  by 
resolution,  at  the  annual  meeting  of  a  majority  of 
those  entitled  to  vote  at  the  election  of  directors, 
but  the  number  must  never  be  reduced  below  five. 

§  444.  Life,  health,  and  accident  insurance  cor- 
porations may  invest  their  capital  stocli  as  fol- 
lows: 

1.  In  loans  upon  unincumbered  and  improved 
real  property  within  the  State  of  California,  which 


131  INSURANCE    CORPORATIONS.  §§  443,  445 

shall  be  worth  at  the  time  of  the  investment  at 
least  forty  per  cent  more  than  the  sum  loaned; 

2.  In  the  purchase  of  or  loans  upon  interest- 
bearing  bonds,  and  other  securities  of  the  United 
States  and  of  the  State  of  California; 

3.  In  the  purchase  of  or  loans  upon  interest- 
bearing  bonds  of  any  of  the  other  states  of  the 
union,  or  of  any  county,  or  incorporated  citj^  or 
city  and  county  in  the  state  of  California; 

4.  In  the  purchase  of  loans  upon  any  stocl^s  of 
corporations  formed  under  the  laws  of  tliis  state, 
except  of  mining  corporations,  which  shall  have, 
at  the  time  of  the  investment,  a  value,  in  the  city 
and  county  of  San  Francisco,  of  not  less  than 
sixty  per  cent  of  their  par  value,  and  shall  be  rated 
as  hrst-class  securities;  but  no  loans  shall  be  made 
on  any  securities  specified  in  subdivisions  three 
and  four  of  this  section,  in  any  amount  beyond 
sixty  per  cent  of  the  marliet  value  of  the  securi- 
ties, nor  shall  any  loan  be  made  on  the  stock  of 
the  corporation,  or  notes  or  other  obligations  of  its 
corporators.  [Amendment  approved  March  80, 
1874;  Amendments  1873-4,  211.  In  effect  July  1, 
1874.] 

§  445.  The  corporation  may,  by  its  by-laws, 
limit  the  number  of  shares  which  may  be  held  by 
any  one  person,  and  make  such  other  provisions 
for  the  protection  of  the  stockliolders  and  the  bet- 
ter security  of  those  dealing  with  it  as  to  a  ma- 
jority of  the  stockholders  may  seem  proper,  not 
inconsistent  with  the  provisions  of  this  title  or 
part. 

§  446.  All  premiums  must  be  payable  wholly 
in  cash,  or  one  half  or  a  greater  proportion  in 
cash,  and  the  remainder  in  promissory  notes  bear- 
ing interest,  as  may  be  provided  for  by  the  by- 
laws.   Agreements  and  policies  of  insurance  made 


§§  446,  447  INSURANCE    CORPORATIONS.  132 

by  the  corporation  may  be  upon  the  basis  of  full 
or  partial  participation  in  the  profits,  or  without 
any  participation  therein,  as  may  be  provided  by 
the  by-laws  and  agreed  between  the  parties. 

§  447.  Every  life  insurance  corporation  organ- 
ized under  the  laws  of  this  state  must,  on  or  be- 
fore the  first  day  of  February  of  each  year,  fur- 
nisli  the  insurance  commissioner  the  necessary 
data  for  determining  the  valuation  of  all  its  poli- 
cies outstanding  on  the  thirty-first  day  of  Decem- 
ber then  next  preceding.  And  every  life  insur- 
ance company  organized  under  the  laws  of  any 
other  State  or  country,  and  doing  business  in  this 
State,  must,  upon  the  written  requisition  of  the 
commissioner,  furnish  him,  at  such  time  as  he 
may  designate,  the  requisite  data  for  determining 
the  valuation  of  all  of  its  policies  then  outstand- 
ing. Such  valuations  must  be  based  upon  the  rate 
of  mortality  established  by  the  American  experi- 
ence life-table  and  interest  at  four  and  one-half 
per  cent  per  annum;  provided,  that  from  and  after 
the  thirty-first  day  of  December,  A.  D.  one  thous- 
and eight  hundred  and  ninety-one,  such  valua- 
tions must  be  based  upon  the  rate  of  mortality 
established  by  the  combined  experience  or  actu- 
aries' table  of  mortality,  with  interest  at  the  rate 
of  four  per  cent  per  annum.  When  the  laws  of 
any  other  State  of  territory  require  of  a  life  in- 
surance company  organized  under  the  laws  of  this 
State  a  valuation  of  its  outstanding  policies  by  any 
standard  of  valuation  different  from  that  named 
in  this  section,  the  insurance  commissioner  is 
hereby  authorized  to  malje  such  valuation  for  use 
in  such  other  State  or  territory,  and  to  issue  his 
certificate  in  accordance  therewith.  For  the  pur- 
pose of  making  the  valuations,  the  insurance  com- 
missioner is  authorized  to  employ  a  competent 
actuary,  whose  compensation  for  such  valuations 


133  INSURANCE!  CORPORATIONS.  §§  448-450 

shall  be  three  cents  for  each  thousand  dollars  of 
insurance;  to  be  paid  by  the  respective  companies 
whose  policies  are  thus  valued.  [Amendment  ap- 
proved February  25,  1889;  Stats.  1889,  p.  35.] 

§  448.  No  stamp  is  required  nor  stamp  duty  ex- 
acted on  any  contract  of  insurance,  when  such 
contract  insures  against  accident  which  may  re- 
sult In  injury  or  death. 

See  Act  of  March  28,  1874,  Relative  to  Mutual 
Beneficial  and  Relief  Associations,  Appendix,  p. 
723. 

§  449.  When  the  certificate  of  the  insurance 
commissioner  of  this  state,  of  the  valuation  of  the 
policies  of  a  life  insurance  company,  as  provided 
in  section  four  hundred  and  forty-seven  of  the 
Civil  Code  of  this  state,  issued  to  any  company  or- 
ganized under  the  laws  of  this  state,  shall  not  be 
accepted  by  the  insurance  authorities  of  any  other 
state,  in  lieu  of  a  valuation  of  the  same,  by  the 
insurance  officer  of  such  other  state,  then  every 
company  organized  under  the  laws  of  such  other 
state  doing  business  in  this  state,  shall  be  required 
to  have  a  separate  valuation  of  its  policies  made 
under  the  authority  of  the  insurance  commissioner 
of  this  state,  as  provided  in  section  four  hundred 
and  forty-seven  of  the  Civil  Code.  [New  section 
approved  March  30,  1874;  Amendments  1873-4,  p. 
207.    In  effect  in  sixty  days  from  passage.] 

§  450.  Every  contract  or  policy  of  Insurance 
hereafter  made  by  any  person  or  corporation  or- 
ganized under  the  laws  of  this  state,  or  under 
those  of  any  other  state  or  country,  with  and  upon 
the  life  of  a  resident  of  this  state,  and  delivered 
within  this  state,  shall  contain,  unless  specifically 
contracted  between  the  insurer  and  the  insured 
for  tontine  insurance,  or  for  other  term  or  paid-up 
Civ.    Code— 12 


§  450  INSURANCE    CORPORATIONS.  134 

insurance,  a  stipulation  that  wlien,  after  three  full 
annual  premiums  shall  have  been  paid  on  such 
policy,  it  shall  cease  or  become  void  solely  by  the 
nonpayment  of  any  premium  when  due,  its  entire 
net  reserve,  by  the  American  experience  mortality, 
and  interest  at  four  and  one-half  per  cent  yearly, 
less  any  indebtedness  to  the  company  on  such  pol- 
icy, shall  be  applied  by  such  company  as  a  single 
premium,  at  such  company's  published  rates  in 
force  at  the  date  of  original  policy,  but  at  the  age 
of  the  insured  at  time  of  lapse,  either  to  the  pur- 
chase of  nonparticipating  term  insurance  for  the 
full  amount  insured  by  such  policy,  or  upon  the 
written  application  by  the  owner  of  such  policy, 
and  the  surrender  thereof  to  such  company  within 
three  months  from  such  nonpayment  of  premium, 
to  the  purchase  of  a  nonparticipating  paid-up  pol- 
icy, payable  at  the  time  the  original  policy  would 
be  payable  if  continued  in  force;  both  Idnds  of  in- 
surance to  be  subject  to  the  same  conditions,  ex- 
cept as  to  payment  of  premiums,  as  those  of  the 
original  policy.  It  may  be  provided,  however,  in 
such  stipulation,  that  no  part  of  such  term  insur- 
ance shall  be  due  or  payable,  unless  satisfactory 
proofs  of  death  be  furnished  to  the  insuring  com- 
pany within  one  year  after  death,  and  that  if 
death  shall  occur  within  three  years  after  such 
nonpayment  of  premium,  and  during  such  term 
of  insurance,  there  shall  be  deducted  from  the 
amount  payable  the  sum  of  all  the  premiums  that 
would  have  become  due  on  the  original  policy  if 
it  had  continued  in  force.  If  the  reserve  on  endow- 
ment policies  be  more  than  enough  to  purchase 
temporary  insurance,  as  aforesaid,  to  the  end  of 
the  endowment  term,  the  excess  shall  be  applied 
to  the  purchase  of  pure  endowment  insurance,  pay- 
able at  the  end  of  the  term,  if  the  insured  be  then 
living.  If  any  life  insurance  corporation  or  com- 
pany shall  deliver  to  any  person  in  this  state  a 


135  INSURANCE    CORPORATIONS.  §§  451,  452 

policy  of  insurance  upon  the  life  of  any  person  re- 
siding in  this  state,  not  in  conformity  with  the 
provisions  of  Ibis  section,  the  right  of  such  cor- 
poration or  company  to  transact  business  in  this 
state  shall  tiiereupon  and  thereby  cease  and  ter- 
minate, and  the  insurance  commissioner  shall  im- 
mediately revoke  the  certificate  of  such  corpora- 
tion or  company  authorizing  it  to  do  business  in 
this  slate,  and  publish  such  revocation,  daily,  for 
the  period  of  two  weelis,  in  two  daily  newspapers, 
one  published  in  the  city  of  San  Francisco  and  the 
otlier  in  the  city  of  Sacramento.  [Amendment  ap- 
proved April  2G,  ISSO;  Amendments  (to  Polit.  Code) 
ISSO.  01.  In  effect  in  sixty  days;  repealed  con- 
flicting acts.] 

§  451.  All  associations  or  secret  orders,  and 
other  benevolent  or  fraternal  co-operative  socie- 
ties, incorporated  or  organized  for  the  purpose  of 
mutual  protection  and  relief  of  its  members,  and 
for  the  payment  of  stipulated  sums  of  money  to 
its  meuibers,  or  to  the  family,  of  deceased  mem- 
bers, and  not  for  profit,  are  declared  n^t  to  be  in- 
surance companies  in  the  sense  and  meaning  of 
the  insurance  laws  of  this  state,  and  are  exempt 
from  the  provisions  of  all  existing  insurance  laws 
of  this  state.  [New  section  approved  March  23, 
1885;  Stats.  1885,  221.] 

§  452.  [Eepealed  April  26,  1880;  Amendments 
18S0,  \)2.     In  effect  in  sixty  days.] 


§§  454-456  RAILROAD   CORPORATIONS.  136 

TITLE  III. 

RAILROAD  CORPORATIONS. 

Chapter    I.    Officers  and  Corporate  Stock,  §§  454- 
459. 
II.    Enumeration  of  Powers,  §§  465-478. 
III.    Business,  how  Conducted,  §§  479-491. 

CHAPTER  I. 

OFFICERS   AND    CORPORATE    STOCK. 

§  454.     Directors  to  bo  elected,  when. 

§  455.    Additional  provisions  in  assessment  and  transfer  of 

stock. 
§  456.     Corporations   may   borrow    money   and   issue   bonds. 

Limitation    of  amount. 
§  457.     To  provide  a  sinking  fund  to  pay  bonds. 
§  458.     Capital  stock  to  be  fixed. 
§  459.    Certificate  of  payment  of  fixed  capital   stock. 

§  454.  Directors  of  railroad  corporations  may 
be  elected  at  a  meeting  of  the  stocliholders  other 
than  the  annual  meeting  as  a  majoritj^  of  the  fixed 
capital  stock  may  determine,  or  as  the  bj'-laws 
may  provide;  notice  thereof  to  be  given  as  pro- 
vided for  notices  of  meetings  to  adopt  by-laws  in 
Article  II.,  Chapter  I.,  Title  I.,  of  this  part. 

§  455.  No  stock  in  any  railroad  corporation  is 
transferable  until  all  the  previous  calls  or  install- 
ments thereon  have  been  fully  paid  in;  nor  is  any 
such  transfer  valid,  except  as  between  the  par- 
ties thereto,  unless  at  least  twenty  per  cent  has 
been  paid  thereon  and  certificates  issued  therefor, 
and  the  transfer  approved  hj  the  board  of  direc- 
tors. 

§  456.  Railroad  corporations  may  borrow,  on 
the  credit  of  the  corporation,  and  under  such  regu- 


137  RAILROAD    CORPORATIONS.  §  457 

lations  and  restrictions  as  the  board  of  directors 
thereof,  by  unanimous  concurrence,  may  impose, 
such  sums  of  money  as  may  be  necessary  for  con- 
struct ino;  and  completing-  their  railroad,  with  its 
equipment,  and  for  the  purchase  of  all  necessary 
rolling-  stock  and  all  else  relative  thereto,  and 
may  issue  promissory  notes  therefor,  or  may  is- 
sue and  dispose  of  bonds  to  raise  moneys  neces- 
sary to  pay  therefor,  in  denominations  of  not  less 
than  five  hundred  dollars,  at  a  rate  of  interest 
not  exceeding  ten  per  cent  per  annum;  and  may 
also  issue  bonds,  or  promissory  notes,  of  the 
same  denomination  and  rate  of  interest  in  pay- 
ment of  any  debts  or  contracts  for  constructing 
and  completing  their  road,  with  its  equipment 
and  rolling  stock,  and  all  else  relative  thereto, 
and  for  the  purchase  of  railroads  and  other  prop- 
erty within  the  purposes  of  the  corporation.  The 
amount  of  bonds,  or  promissory  notes,  issued  for 
such  purposes,  must  not  exceed  in  all  the  amount 
of  their  capital  stock;  and  to  secure  the  pay- 
ment of  such  bonds,  or  notes,  they  may  mort- 
gage their  corporate  property  and  franchises,  or 
may  secure  the  payment  of  such  bonds  or  note» 
by  deed  of  trust  of  their  corporate  property  and 
franchises.  Any  person  or  corporation  formed 
under  the  laws  of  this  State,  or  of  any  other 
State  within  the  United  States,  that  the  directors 
of  the  railroad  corporation  may,  by  unanimous 
concurrence,  select,  may  be  trustees  in  such  deed 
of  trust.  [Approved  ^iarch  I),  lb\)~i;  Stats.  1807, 
c.  71).  J 

Debt  exceeding  available  means:  See  Penal 
Code,  §  5G6. 

§  457.  The  directors  must  provide  a  sinking 
fund,  to  be  specially  applied  to  the  redemption  of 
such  bonds  on  or  before  their  maturity,  and  may 


§§  458,  459  RAILROAD   CORPORATIONS.  138 

also  confer  on  any  holder  of  anj^  bond  or  note  so 
issned,  for  money  borrowed  or  in  payment  of  any 
debtorcontractfor  the  construction  and  equipment 
of  such  road,  the  rigiit  to  convert  the  principal  due 
or  owing-  thereon  into  stoclv  of  such  corporation,  at 
any  time  within  eight  years  from  the  date  of  such 
bonds,  under  such  regulations  as  the  directors  may 
adopt. 

§  458.  When,  at  any  time  after  filing  the  arti- 
cles of  incorporation,  it  is  ascertained  that  the 
capital  stock  therein  set  out  is  either  more  or  less 
than  actually  required  for  constructing,  equipping, 
operating,  and  maintaining  the  road,  by  a  two- 
third  vote  of  the  stocl^liolders  the  capital  stock 
must  be  fixed,  and  a  certificate  thereof,  and  of  the 
proceedings  had  to  fix  the  same,  must  be  made  out 
and  filed  in  the  office  of  the  Secretary  of  State. 

§  459.  Within  thirty  days  after  the  payment  of 
the  last  installment  of  the  fixed  capital  stock  of 
any  railroad  corporation  organized  under  this  title 
and  part,  the  president  and  secretary,  and  a  ma- 
jority of  the  directors  thereof,  must  make,  sub- 
scribe, and  file  in  the  office  of  the  Secretary  of 
State  a  certificate  stating  the  amount  of  the  fixed 
capital  stock,  and  that  the  wliole  thereof  has  been 
paid  in.  The  certificate  must  be  verified  by  the 
affidavit  of  tlie  president  and  secretary. 


139  RAILROAD    CORPORATIONS.  §  465 

CHAPTER  II. 

ENUMERATION   OF   POWERS. 

§  465.     Enumeration  of  powers: 

1.  To  survey  road; 

2.  May  accept   real   estate; 

3.  May  acquire  rral   estate; 

4.  Lay  out  read,  hew  wide; 

5.  \\  nere  may   construct  road; 

6.  May  crrss  or  connect  roads; 

7.  May  purchase  land,  timber,  stone,  gravel,  &c. ; 

8.  Carry  persons  and  freight; 

9.  Erect  necesf^ary  buildings; 

10.  Reeulate   time  and   freights,   subject  to   legisla- 

tion; 

11.  Regulate  force  and  speed. 
§  466.     Map  and  profile  to  be  filed. 

§  467.     May  change  line  of  road. 

§  4P8.     Foifpiture  of  franchi.-e. 

§  469.     Crossings  and  intersections.     Condemnation. 

§  470.  Not  to  use  streets,  alleys,  or  water  in  citi-^s  or 
towns,  except  by  a  two-third  vote  of  the  city  or 
town   ?uthoriti-s. 

§  471.  Railroads  through  cities  not  to  charge  fare  to  and 
from   points  therein. 

§  472.  When  crossing  railroads  or  highways,  how  other 
lands  are  acquired. 

§  473.  Corporal  ions  may  consolidate.  Publication  of  no- 
tice.    Cony  to  bo  filed. 

§  474.     State  lards  granted  for  use  of  corporations. 

§  47.5.     Grant  not  to  embrace  town   lots. 

§  476.  Wood,  stone,  and  earth  may  be  taken  from  State 
lands. 

§  477.     Lands    to    revert    to    State,    wh^n. 

§  478.     Selections  made,  how  proved  and  certified  to. 

§  465.    Every  railroad  corporation  has  power: 

1.  To  cause  such  examination  and  surveys  to  be 
made  as  may  be  necessary  to  the  selection  of  the 
most  advanta. aeons  route  for  the  railroad;  and  for 
such  purposes  their  officers,  aji-ents,  and  employees 
may  enter  upon  the  lands  or  waters  of  any  person, 
subject  to  liability  for  all  damages  which  they  do 
thereto; 

2.  To  receive,  hold,  take,  and  convey,  by  deed 


§  465  RAILROAD    CORPORATIONS.  140 

or  otherwise,  as  a  natural  person,  sncli  Yolnntary 
grants  and  donations  of  real  estate  and  otiier  i)rop- 
erty  which  may  be  made  to  it  to  aid  and  encour- 
age the  construction,  maintenance,  and  accommo- 
dation of  such  railroad; 

3.  To  purcliase,  or  by  voluntary  grants  or  dona- 
tions to  receive,  enter,  talie  possession  of,  hold, 
and  use  all  such  real  estate  and  other  property  as 
may  be  absolutely  necessary  for  the  construction 
and  maintenance  of  such  railroad,  and  for  all  sta- 
tions, depots,  and  other  purposes  necessary  to  suc- 
cessfully worli  and  conduct  the  business  of  the 
road ; 

4.  To  lay  out  its  road,  not  exceeding  nine  rods 
wide,  and  to  construct  and  maintain  the  same, 
witli  a  single  or  double  track,  and  with  such  ap- 
pendages and  adjtincts  as  maj'  be  necessary  for 
the  convenient  use  of  the  same; 

5.  To  construct  their  road  across,  along,  or  upon 
any  stream  of  water,  watercourse,  roadstead,  bay, 
navigable  stream,  street,  avenue,  or  higliway,  or 
across  anj'  railway,  canal,  ditch,  or  flume  which 
the  route  of  its  road  intersects,  crosses  or  runs 
along,  in  such  manner  as  to  afford  security  for 
life  and  property;  but  the  corporation  shall  restore 
the  stream  or  watercourse,  road,  street,  avenue, 
highway,  railroad,  canal,  ditch,  or  flume  dius  in- 
tersected to  its  former  state  of  usefulness,  as  near 
as  may  be,  or  so  that  the  raih'oad  shall  not  un- 
necessarily impair  its  usefulness  or  injure  its  fran- 
chise; 

6.  To  cross,  intersect,  join,  or  unite  its  railroad 
with  any  other  railroad,  either  before  or  after  con- 
struction, at  any  point  upon  its  route,  and  upon 
the  grounds  of  such  other  railroad  corporation, 
wnth  the  necessary  turnouts,  sidings,  and  switclies, 
and  otlier  conveniences  in  furtherance  of  the  ob- 
jects of  its  connections;  and  every  corporation 
whose  railroad  is,  or  shall  be  hereafter,  intersected 


Ifl  RAILROAD    CORPORATIONS.  §  465 

hy  any  new  railroad,  sball  unite  with  the  owners 
of  such  new  railroad  in  forminor  such  intersections 
and  connections,  and  grant  facilities  therefor;  and 
if  the  two  corporations  cannot  agree  upon  the 
amount  of  compensation  to  be  made  therefor,  or 
the  points  or  the  manner  of  such  crossings,  inter- 
sections, and  connections,  the  same  shall  be  ascer- 
tained and  determined  as  is  provided  in  Title  VII., 
Part  III.,  Code  of  Civil  Procedure  [Sees.  1237- 
1263] ; 

7.  To  purchase  lands,  timber,  stone,  gravel,  or 
other  materials,  to  be  used  in  the  construction  and 
maintenance  of  its  road,  and  all  necessary  append- 
ages and  adjuncts,  or  acquire  them  in  the  mnnner 
provided  in  Title  VII.,  Part  III.,  Code  of  Civil  Pro- 
cedure, for  the  condemnation  of  lands;  and  to 
change  the  line  of  its  road,  in  whole  or  in  part. 
whenever  a  majority  of  the  directors  so  determine, 
as  is  provided  hereinafter;  but  no  such  change 
must  var3'  tlie  general  route  of  such  road,  as  con- 
templated in  its  articles  of  incorporation: 

8.  To  carry  persons  and  property  on  their  rail- 
road, and  receive  tolls  or  compensation  therefor; 

9.  To  erect  and  maintain  all  necessary  and  con- 
venient buildings,  stations,  depots,  fixtures,  and 
machinery  for  the  accommodation  and  use  of  their 
passengers,  freight,  and  business; 

10.  To  regulate  the  time  and  manner  in  which 
passengers  and  property  shall  be  transported,  and 
the  tolls  and  compensation  to  be  paid  therefor 
witliin  the  limits  prescribed  by  law  and  subject 
to  alteration,  change,  or  amendment  by  the  legis- 
lature at  any  time; 

11.  To  regulate  the  force  and  speed  of  their 
locomotives,  cars,  trains,  or  other  machinery  used 
and  en)]doyed  on  their  road,  and  to  establish,  exe- 
cute, and  enforce  all  needful  and  proper  rules  and 
regulations  for  the  management  of  its  business 
transactions  usual  and  proper  for  railroad  corpo- 
rations. 


§§  46G,  467  RAILROAD   CORPORATIONS.  142 

Exceeding  limit  upon  power  to  acquire  realty: 
See  ante,  sec.  3G0. 

Eminent  domain:  See  tlie  subject  discussed  in 
Code  Civ.  Proc,  sees.  1237-1203. 

Subd.  8.  Ptates  of  charges:  See  post,  sec.  489. 
Eslablisliment  of  rates  by  railroad  commissioners: 
See  Const.  Cnl.,  art.  12,  sec.  22. 

Subd.  10.  Regulating  time  and  manner  of  trans- 
portation, time  tables  of  starting:    See  sec.  481. 

§  466.  Every  railroad  corporation  in  this  State 
must,  within  a  reasonable  time  after  its  road  is 
finally  located,  cause  to  be  made  a  map  and  profile 
thereof,  and  of  the  land  acquired  for  the  use  there- 
of, and  the  boundaries  of  the  several  counties 
through  which  the  road  may  run,  and  tile  the  same 
in  the  otiice  of  the  Secretary  of  State;  and  also 
like  maps  of  the  parts  thereof  located  in  different 
counties,  and  tile  the  same  in  the  otiice  of  the 
cleric  of  the  county  in  M'hich  such  parts  of  the 
road  are,  there  to  remain  of  record  forever.  The 
maps  and  profiles  must  be  certified  by  the  chief 
engineer,  the  acting  president  and  secretary  of 
such  company,  and  copies  of  the  same,  so  certified 
and  filed,  be  kept  in  the  office  of  the  secretary  of 
the  corporation,  subject  to  examination  by  all  par- 
ties interested. 

§  467.  If,  at  any  time  after  the  location  of  the 
line  of  the  railroad  and  the  tiling  of  the  maps  and 
profiles  thereof,  as  provided  in  the  preceding  sec- 
tion, it  appears  that  the  location  can  be  improved, 
the  directors  may,  as  provided  in  subdivision  7, 
section  405,  alter  or  change  the  same,  and  cause 
new  maps  and  profiles  to  be  filed,  showing  such 
changes,  in  the  same  offices  where  the  originals 
are  of  file,  and  may  proceed  in  the  same  manner 
as  the  original  location  was  acquired,  to  acquire 
and  take  possession  of  such  new  line,  and  must 
sell  or  relinquish  the  lauds  owned  by  them  for  the 


143  RAILROAD   CORPORATIONS.  §§  468,  469 

original  location,  within  five  years  after  such 
chaii.ue.  No  new  location  as  herein  provided 
must  be  so  run  as  to  avoid  any  points  named  in 
their  articles  of  incorporation. 

Stnts.  1801,  p.  621,  sec.  34. 

Oianging  location:    See  sec.  4G5,  subd.  7. 

§  468.  Every  railroad  corporation  must  within 
two  years  after  filing  its  original  articles  of  incor- 
poration, begin  the  construction  of  its  road,  and 
must  every  year  thereafter  complete  and  put  in 
full  operation  at  least  five  miles  of  its  road,  until 
the  same  is  fully  completed;  and  upon  its  failure 
so  to  do,  for  the  period  of  one  year,  its  right  to  ex- 
tend its  road  beyond  the  point  then  completed  is 
forfeited. 

Stats.   ISGl,   62G,    sec.  54;   1870,   578. 

Organizing  and  commencing  work:  See  general 
provision,  sec.  358,  ante. 

Act  enabling  railroad  companies  to  complete 
railroads:  See  post,  Appendix,  p.  819. 

§  469.  Whenever  the  track  of  one  railroad  in- 
tersects or  crosses  the  track  of  another  railroad, 
whether  the  same  be  a  street  railroad,  wliolly 
within  the  limits  of  a  city  or  town,  or  other  rail- 
road, the  rails  of  either  or  each  road  must  be  so 
cut  and  adjusted  ns  to  permit  the  passage  of  the 
cars  on  each  road  witli  as  little  obstruction  as  pos- 
sible; and,  in  case  tlie  persons  or  corporations  own- 
ing The  railroads  cannot  agree  as  to  the  comi)ensa- 
tion  to  be  made  for  cutting  and  adjusting  the  rails, 
the  condemnation  of  the  right  of  way  over  the  one 
for  the  use  of  the  other  road,  may  be  had  in  pro- 
ceedings under  Title  A'll.,  Part  III.,  Code  of  Civil 
Procedure,  and  the  damages  assessed  and  the 
right  of  way  granted  as  in  other  cases. 

Stats.  18G2,  498. 


§§  470-473  RAILROAD    CORPORATIONS.  144 

Right  of  eminent  domain:  Code  Civ.  Proc,  sees. 
1237-12G3. 

Crossings  and  intersections:  See  ante,  465,  subd. 
sec.  G. 

§  470.  No  railroad  corporation  must  use  any 
street,  alley,  or  highway,  or  any  of  the  land  or 
water,  within  any  incorporated  city  or  town,  un- 
less the  right  to  so  use  the  same  is  granted  by  a 
two-third  vote  of  the  town  or  city  authority  from 
which  the  right  must  emanate. 

§  471.  [Repealed  April  1,  1878;  Amendments 
1877-S,  84.     In  effect  immediately.] 

§  472.  Whenever  the  track  of  such  railroad 
crosses  a  railroad  or  highway,  such  railroad  or 
higliway  may  be  carried  under,  over,  or  on  a  level 
with  the  trade,  as  may  be  most  expedient;  and  in 
cases  where  an  embanliment  or  cutting  necessi- 
tates a  change  in  the  line  of  such  railroad  or  high- 
way, the  corporation  may  talee  such  additional 
lands  and  material  as  are  necessary  for  the  con- 
struction of  such  road  or  higliway  on  such  new 
line.  If  such  other  necessary  lands  cannot  be  had 
otherwise,  they  may  be  condemned  as  provided  in 
Title  VII.,  Part  III.,  Code  of  Civil  Procedure;  and 
when  compensation  is  made  therefor,  the  same  be- 
comes the  property  of  the  corporation.  [Sees.  1237- 
1203.] 

Stats.  1SG9,  616,  see.  19. 

§  473.  Two  or  more  railroad  corporations  may 
consolidate  their  capital  stocls:,  debts,  property,  as- 
sets, and  franchises  in  such  manner  as  may  be 
agreed  upon  by  their  respective  boards  of  direc- 
tors. No  such  amalgamation  or  consolidation  must 
take  place  without  the  written  consent  of  the 
holders  of  three-fourths  in  value  of  all  the  stock 
of  each  corporation;  and  no  such  amalgamation  or 


145  RAILROAD    CORPORATIONS.  §§  474-476 

consolidation  must  in  any  vray  relieve  such  corpo- 
ration or  the  stockholders  thereof  from  any  and 
all  just  liabilities.  In  case  of  such  amalgama- 
tion or  consolidation,  due  notice  of  the  same  must 
be  given,  by  advertisement  for  one  month  in  at 
least  one  newspaper  in  each  county,  if  there  be 
one  published  therein,  into  or  through  which  such 
roads  run,  and  also  for  the  same  length  of  time 
in  one  paper  published  in  Sacramento  and  in  two 
papers  published  in  San  Francisco;  and  when  the 
consolidation  and  amalgamation  is  completed,  a 
copy  of  the  new"  articles  of  incorporation  must  be 
filed  in  the  office  of  the  Secretary  of  State. 
Stats.  1861,  622,  sec.  40. 

§  474.  There  is  granted  to  every  railroad  cor- 
poration the  right  of  way  for  the  location,  con- 
struction, and  maintenance  of  their  necessary 
works,  and  for  every  necessary  adjunct  thereto, 
over  any  swamp,  overflowed,  or  other  public  lands 
of  the  State  not  otherwise  disposed  of  or  in  use, 
not  in  any  case  exceeding  in  length  or  width  that 
which  is  necessary  for  the  construction  of  such 
works  and  adjuncts,  or  for  the  protection  thereof, 
not  in  any  case  to  exceed  two  hundred  feet  in 
width. 

§  475.  The  grants  mentioned  in  the  preceding 
section  do  not  apply  to  public  lands  of  the  State 
within  the  corporate  limits  of  towns  and  cities,  or 
within  three  miles  thereof. 

§  476.  The  right  to  take  from  any  of  the  lands 
belonging  to  the  State,  adjacent  to  the  works  of 
the  corporation,  all  materials,  such  as  wood,  stone. 
and  earth,  naturally  appurtenant  thereto,  which 
maj'  be  necessary  and  convenient  for  the  original 
construction  of  its  works  and  adjuncts,  is  granted 
to  such  corporations. 

Civ.   Code.— 13. 


§§  477,  478  RAILROAD   CORPORATIONS.  146 

§  477.  If  any  corporation  receiving  State  lauds 
or  appurtenances  tliereiinder  is  dissolved,  ceases 
to  exist,  is  discontinued,  or  the  route  or  line  of  its 
Avorlvs  is  so  changed  as  not  to  cover  or  cross  the 
lands  selected,  or  the  use  of  tlie  lands  selected  is 
abandoned,  such  selected  lands  revert,  and  the 
title  thereto  is  reinvested  in  the  State  or  its  gran- 
tees, free  from  all  such  uses. 

§  478.  When  any  selection  of  the  right  of  way, 
or  land  for  an  adjunct  to  the  works  of  a  railroad 
corporation,  is  made  bj'  any  corporation,  the  sec- 
retary thereof  must  transmit  to  the  Surveyor  Gen- 
eral, Comptroller  of  State,  and  recorder  of  the 
county  in  which  the  selected  lands  are  situate,  a 
plat  of  the  lands  so  selected  giving  the  extent 
thereof  and  uses  for  which  the  same  is  claimed  or 
desired,  duly  verified  to  be  correct;  and,  if  ap- 
proved, the  surveyor  general  must  so  indorse  the 
plat,  and  issue  to  the  corporation  a  permit  to  use 
the  same,  unless  on  petition  properly  presented  to 
the  court,  a  review  is  had  and  such  use  prohibited. 

The  five  preceding  sections  are  drawn  from 
Stats.  1S(51,  017,  G18,  sees.  20-22. 


147  RAILROAD   CORPORATIONS.  §§  479,  480 

CII AFTER   III. 

BUSINESS,  now  CONDUCTED. 

§  479.     Checks  to  be  affixed  to  all  baggage.  Damages. 

§  4?0.     Annual  report  to  be  verified.     Forra  of  report. 

§  481.     Duties  of  corporation. 

§  482.     Ccrporaticn  to  pay  damages  for  refusal. 

§  4S3.  Furnish  room  inside  passenger  cars,  and  bo  respon- 
sib'e  for  damages  occuriing  on  freight  and  other 
cais. 

§  484.  Corporaticns  to  post  printed  regulations,  and  not 
responsible  for  damages  in  violation  cf  rules. 

§  485.  To  ray  damages.  Not  liable  in  certain  cases.  Cor- 
poration  may  recover  damages,   when. 

§  486.     Regulations  cf  trains.     Penalty. 

§  487.     Passenger  refusing  to  pay  fare. 

§  488.     Officers  to  wear  badge. 

§  489.     Rates  of  charges. 

§  490.  Passenger  tickets,  how  issued,  and  to  be  good  for 
six  mouths. 

§  491.     Characlt  r  of  iron  to  be  used. 

§  492     E  e  a^ed  or  urder.round  rai  wr ys. 

§  49 j.    To  ipp  y  to  a  1  railro-d  compai  i  s. 

§  479.  A  check  must  be  affixed  to  every  pack- 
age or  parcel  of  baggage  when  taken  for  trans- 
portation by  anj'  agent  or  employee  of  such  rail- 
road corporation,  and  a  duplicate  thereof  given  to 
the  passenger  or  person  delivering  the  same  in 
his  behalf;  and  if  such  check  is  refused  ou  de- 
maud,  the  railroad  corporation  must  pay  to  such 
passenger  the  sum  of  t went 3'  dollars,  to  be  recov- 
ered in  an  action  for  damages;  and  no  fare  or  toll 
must  be  collected  or  received  from  such  passen- 
ger, and  if  such  passenger  has  paid  his  fare,  the 
same  must  be  returned  bj^  the  conductor  in  charge 
of  the  train;  and  on  producing  the  check,  if  his 
baggage  is  not  delivered  to  him  by  the  agent  or 
employee  of  the  railroad  corporation,  he  may  re- 
cover the  value  thereof  from  the  corporation. 

§  480.  Every  railroad  corporation  must  make 
an  annual  report  to  the  iSecrctaiy  of  State,  or  other 
officer   designated   by   law,    of   its   operations  for 


§§  481  RAILROAD   CORPORATIONS,  148 

each  year,  ending  on  the  thirty-first  day  of  De- 
cember, verified  by  the  oaths  of  the  president  or 
acting  superintendent  of  operations,  the  secretary 
and  treasurer  of  such  corporation,  and  file  it  in 
the  office  of  the  Secretary  of  State,  or  such  other 
designated  officer,  by  the  twentieth  day  of  Feb- 
ruary, which  must  state: 

1.  The  capital  stock,  and  the  amount  thereof 
actually  paid  in; 

2.  The  amount  expended  for  the  purchase  of 
lands  for  the  construction  of  the  road,  for  build- 
ings, and  for  engines  and  cars,  respectively; 

3.  The  amount  and  nature  of  its  indebtedness, 
and  the  amount  due  the  corporation; 

4.  The  amount  received  from  the  transportation 
of  passengers,  property,  mails,  and  express  mat- 
ter, and  from  other  sources; 

5.  The  amount  of  freight,  specifying  the  quan- 
tity in  tons; 

6.  The  amount  paid  for  repairs  of  engines,  cars, 
buildings,  and  other  expenses,  in  gross,  showing 
the  current  expenses  of  running  such  road; 

7.  The  number  and  amount  of  dividends,  and 
when  paid; 

S.  The  number  of  engine-houses  and  shops,  of 
engines  and  cars,  and  their  character. 

§  481.  Every  such  corporation  must  start  and 
run  their  cars,  for  the  transportation  of  persons  and 
property,  at  such  regular  times  as  they  sliall  fix 
by  public  notice,  and  must  furnish  sufficient  ac- 
commodations for  the  transportation  of  all  such 
passengers  and  property  as,  within  a  reasonable 
time  previous  thereto,  offer  or  is  offered  for  trans- 
portation, at  the  place  of  starting,  at  the  junction 
of  other  railroads,  and  at  riding  and  stopping 
places  established  for  receiving  and  discharging 
way  passengers  and  freight;  and  must  take,  trans- 
port, and  discharge  such  passengers  and  property 


149  RAILROAD    CORPORATIONS.  §§  482-484 

at,  from,  and  to  siic-h  places,  on  the  due  payment 
of  tolls,  freight,  or  fare  therefor. 

Rules  and  regulations:  See  sec.  484,  post. 

Act  compelling  railroads  to  operate  roads:  See 
post.  Appendix,  p.  821. 

Act  exempting  railroad  constructed  at  elevation 
of  five  thousand  feet  from  operating  roads  at  cer- 
tain times:  See  pcsr,  p.  821. 

Act  organizing  railroad  commissioners  and  de- 
fining powers:  See  post,  Appendix,  p.  82.3. 

§  482.  In  case  of  refusal  by  such  corporation 
or  their  agents  so  to  take  and  transport  any 
passengers  or  property  or  to  deliver  the  same,  at 
the  regular  appointed  places,  such  corporation 
must  pay  to  the  party  aggrieved  all  damages 
vrhich  are  sustained  thereby,  with  costs  of  suit. 

§  483.  Every  railroad  corporation  must  ftir- 
nish,  on  the  inside  of  its  passenger  cars,  sufficient 
room  and  accommodations  for  all  passengers  to 
■uiiom  ticliets  are  sold  for  any  one  trip,  and  for 
all  persons  presenting  tickets  entitling  them  to 
travel  thereon;  and  when  fare  is  taken  for  trans- 
porting passengers  on  any  baggage,  wood,  gravel, 
or  freight  car,  the  same  care  must  be  taken  and 
the  same  responsibility  is  assumed  by  the  corpo- 
ration as  for  passengers  or  passenger  cars. 

Accommodations  to  be  furnished:  See  sec.  481, 
ante. 

§  484.  Every  railroad  corporation  must  have 
printed  and  conspicuously  posted  on  the  inside  of 
its  passenger  cars  its  rules  and  regulations  re- 
garding fare  and  conduct  of  its  passengers;  and  in 
case  any  passenger  is  injured  on  or  from  the  plat- 
form of  a  car,  or  on  any  baggage,  wood,  gravel, 
or  freight  car,  in  violation  of  such  printed  regu- 
lations, or  in  violation  of  positive  verbal  instruc- 


§  485  RAILROAD   CORPORATIONS.  150 

tions  or  iujiinctions  given  to  such  passenger  in 
person  by  any  officer  of  the  train,  the  corporation 
is  not  responsible  for  damages  for  sucli  injuries, 
unless  the  corporation  failed  to  comply  with  the 
provisions  of  the  preceding  section. 

The  five  preceding  sections  were  drawn  from 
Stats.  18f.>l,  024,  (125,  sees.  44-40,  48. 

liules  and  regulations  by  carriers  of  passengers, 
generally:  See  post,  sec.  2180. 

§  485.  Railroad  corporations  must  make  and 
maintain  a  good  and  sufficient  fence  on  either  or 
both  sides  of  their  track  and  property.  In  case 
they  do  not  make  and  maintain  such  fence,  if  their 
engine  or  cai'S  shall  kill  or  maim  any  cattle  or 
other  domestic  animals  upon  their  line  of  road 
which  passes  through  or  along  the  property  of  the 
owner  thereof,  they  must  pay  to  the  owner  of 
such  cattle  or  other  domestic  animals  a  fair  mar- 
ket price  for  the  same,  unless  it  occurred  through 
the  neglect  or  fault  of  the  owner  of  the  animal  so 
killed  or  maimed.  Kailrcad  corporations  paying 
to  the  owner  of  the  land  through  or  along  which 
their  road  is  located  an  agreed  price  for  making 
and  maintaining  such  fence,  or  paying  the  cost 
of  such  fence,  with  the  award  of  damages  allowed 
for  the  right  of  way  for  such  railroad,  are  relieved 
and  exonerated  from  all  claims  for  damages  aris- 
ing out  of  the  killing  or  maiming  any  animals  of 
persons  who  thus  fail  to  construct  and  maintain 
such  fence;  and  the  owners  of  such  animals  are 
responsible  for  any  damages  or  loss  which  may  ac- 
crue to  such  corporation  from  such  animals  being 
upon  their  railroad  track,  resulting  from  the  non- 
construction  of  such  fence,  unless  it  is  shown  that 
such  loss  or  damage  occurred  through  the  negli- 
gence or  fault  of  the  corporation,  its  officers, 
agents,  or  employees. 

Stats.  1761,  023,  see.  40. 


i:.]  RAILROAD    CORPORATIONS.  §§  486-488 

§  486.  A  bell,  of  at  least  twenty  pounds, 
wf'iglit,  must  be  placed  on  each  locomotive  en- 
gine, and  be  rung  at  a  distance  of  at  least  eighty 
lids  from  the  place  where  the  railroad  crosses  any 
street,  road,  or  highway,  and  be  kept  ringing  until 
it  lias  crossed  such  street,  road,  or  highway;  or  a 
-team-whistle  must  be  attached,  and  be  sounded, 
except  in  cities,  at  the  like  distance,  and  be  kept 
sounding  at  intervals  until  it  has  crossed  the 
same,  under  a  penalty  of  one  hundred  dollars  for 
every  neglect,  to  be  paid  by  the  corporation  oper- 
ating the  railroad,  which  may  recovered  in  an 
action  prosecuted  by  the  district  attorney  of  the 
proper  county,  for  the  use  of  the  State.  The  cor- 
poration is  also  liable  for  all  damages  sustained 
by  any  person,  and  caused  by  its  locomotives, 
train,  or  cars,  when  the  provisions  of  this  section 
are  not  complied  with. 

Omitting  to  ring  the  bell,  a  misdemeanor:  Pen. 
Code,  sec.  390. 

§  487.  If  any  passenger  refuses  to  pay  his  fare, 
or  to  exhibit  or  surrender  his  ticket,  Avhen  renson- 
ably  requested  so  to  do,  the  conductor  and  em- 
ployees of  the  corporation  may  put  him  and  his 
baggage  out  of  the  cars,  using  no  unnecessary 
force,  at  any  usual  stopping  place,  or  near  any 
dwelling-house,  on  stopping  the  train. 

lief  using  to  pay  fare:  See,  generally,  sees.  2187 
et  seq.,  post. 

§  488.  Every  conductor,  baggage-master,  en- 
gineer, brakeman,  or  other  employee  of  any  rail- 
road corporation,  employed  on  a  passenger  train 
or  at  stations  for  passengers,  must  wear  upon  his 
hat  or  cap,  or  in  some  conspicuous  place  on  the 
breast  of  his  coat,  a  badge,  indicating  his  office 
or  station,  and  the  initial  letters  of  the  name  of 
the  corporation  by  which  he  is  employed.    No  col- 


§§  489  RAILROAD    CORPORATIONS.  152 

lector  or  conductor,  without  such  badge,  is  au- 
thorized to  demand  or  to  receive  from  any  passen- 
ger any  fare,  toll,  or  ticl^et,  or  exercise  any  of  the 
powers  of  his  office  or  station;  and  no  other  offi- 
cer or  employee,  without  such  badge,  has  any  au- 
thority to  meddle  or  interfere  Vv'ith  any  passenger 
or  property. 

§  489.  All  railroad  corporations  must  fix  and 
publish  their  rates  of  charges  for  freightage  and 
fares  from  one  depot  to  another,  on  their  various 
lines  of  road  in  this  State,  graduated  as  follows: 

1.  One  rate  of  charges  per  mile  for  a  distance  of 
one  hundred  miles  or  over; 

2.  One  rate  for  a  distance  of  seventy-five  and 
less  than  one  hundred  miles,  charging  not  exceed- 
ing ten  per  cent  per  mile  more  than  the  first  rate; 

3.  One  rate  for  a  distance  of  fifty  and  less  than 
seventy-five  miles,  charging  not  exceeding  fifteen 
per  cent  per  mile  more  than  the  first  rate; 

4.  One  rate  for  a  distance  of  twenty-five  and 
less  than  fifty  miles,  charging  not  exceeding  twen- 
ty per  cent  per  mile  more  than  the  first  rate; 

5.  One  rate  for  a  distance  not  exceeding  twenty- 
five  miles,  charging  not  exceeding  twenty-five  per 
cent  per  mile  more  than  the  first  rate. 

But  in  no  case,  nor  in  any  class  of  charges  here- 
inbefore named,  shall  any  railroad  corporation 
charge  or  receive  more  than  ten  cents  per  mile 
for  each  passenger,  nor  fifteen  cents  per  mile  for 
each  ton  of  freight  transported  on  its  road.  For 
every  transgression  of  these  limitations  the  corpo- 
ration is  liable,  to  the  party  suffering  thereby, 
treble  the  entire  amount  of  fare  or  freightage  so 
charged  to  such  party.  In  no  case  is  the  corpora- 
tion required  to  receive  less  than  twenty-five  cents 
for  any  one  lot  of  freight  for  any  distance. 

Asking  or  receiving  illegal  fare  a  misdemeanor: 
Penal  Code,  sec.  525. 


153  RAILROAD   CORPORATIONS.  §§  490,  491 

"The  three  preceding  sectious  are  founded  on 
Stats.  18G1,  625,  sees.  49-51.  The  provision  fixing 
grades  of  charges  is  in  accordance  with  the  stat- 
utes of  the  states  of  Maine,  Missouri,  Kansas,  and 
others,  and  frequent  suggestions  in  this  State. 
In  Kansas  and  Missouri,  six  cents  per  mile  is  the 
maximum  charge  for  passenger  fare,  and  freight- 
age is  graded  something  lil^e  the  provisions  of  this 
section":  Commissioners'  note. 

Rates  of  charges  on  street  railroads:  Sec.  501, 
post. 

Power  of  railroad  corporations  to  charge  tolls 
or  compensation:  Sec.  405,  subd.  8, 

§  490.  Every  railroad  corporation  must  pro- 
vide, and,  on  being  tendered  the  fare  therefor  fix- 
ed as  provided  in  the  preceding  section,  furnish  to 
every  person  desiring  a  passage  on  their  passen- 
ger cars  a  ticl^et  which  entitles  the  purchaser  to  a 
ride,  and  to  the  accommodations  provided  on  their 
cars,  from  the  depot  or  station  whei'e  the  same  is 
purchased  to  any  other  depot  or  station  on  the  line 
of  their  road.  Every  such  ticl^et  entitles  the  hold- 
er thereof  to  ride  on  their  passenger  cars  to  the 
station  or  depot  of  destination,  or  any  interme- 
diate station,  and  from  any  intermediate  station 
to  the  depot  of  destination  designated  in  the 
ticket,  at  any  time  within  six  months  thereafter. 
Any  corporation  failing  so  to  provide  and  furnish 
tickets,  or  refusing  the  passage  which  the  same 
calls  for  when  sold,  must  pay  to  the  person  so  re- 
fused the  sum  of  two  hundred  dollars. 

§  491.  All  railroads,  other  than  street  railroads 
and  those  used  exclusively  for  carrying  freight  or 
for  mining  purposes,  built  by  corporations  organ- 
ized under  this  chapter,  must  be  constructed  of 
the  best  quality  of  iron  or  steel  rails,  known  as  T 
or  H    rail,    or    other    pattern    of    equal    utility. 


§§  492,  493  RAILROAD   CORPORATIONS.  154 

[Amendment   approved   March  30,   1874;  Amend- 
ments 1873-4,  212.    In  effect  July  1,  1874.J 

§  492.  The  legislative  or  other  body  to  whom 
is  intrusted  Ihe  government  of  the  county,  city 
and  county,  city,  or  town,  under  such  regulations, 
restrictions,  and  limitations,  and  upon  such  terms 
and  payment  of  license  tax  as  the  county,  city  and 
county,  city,  or  town  authority  may  provide,  may 
grant  franchises  for  the  construction  of  elevated 
or  underground  railroad  tracivs  over,  across,  or  un- 
der the  streets  and  public  highways  of  any  such 
county,  city  and  county,  city,  or  toAvn,  for  the 
term  not  exceeding  fifty  years;  provided,  that  be- 
fore granting  such  franchise  there  shall  be  pre- 
sented to  such  legislative  or  other  body  a  petition 
signed  by  the  owners  of  a  majority  of  the  lauded 
property,  other  than  public  property,  on  the  line 
of  said  elevated  portion  applied  for.  [New  sec- 
tion approved  March  27,  1895;  Stats.  1895,  p.  186. 
In  effect  immediately.] 

§  493.  This  act  shall  apply  to  all  railroad  com- 
panies heretofore  and  hereafter  incorporated. 
[New  section  approved  March  27,  1895;  Stats. 
1895,  p.  186.    In  effect  immediately.] 


155  STREET   RAILROAD   CORPORATIONS.  §  497 

TITLE   IV. 

STREET    RAILROAD    CORPORATIONS. 

S  497.  Authority  to  lay  street  railroad  track,  how  ob- 
tained. 

?  498.  Rrstrictions  and  limitations  to  the  grant  of  the 
right  of  way. 

§  499.     Two  corporations  may  use  the  same  track. 

i;  500.     Crossing  tiacks.     Obstructions. 

^  501.     Rates  of  fare,  speed,  &o. 

§  502.  Time  allowed  for  completion  of  work  of  laying  down 
track. 

?  503.     May  make  further  regulations  and  rules. 

i'  504.     Penalty  for  overcharging. 

i  505.    To  provide  and  furnish  passenger  tickets.     Penalty. 

?■  .'OJ.     Trial,  proof,  and  limitation. 

§  507.     City  or  town  to  reserve  certain  rights. 

i;  508.     License  to  be  paid  to  city  or  town. 

^  509.    Track  for  grading  purposes. 

§  510.  What  provisions  of  Title  III  are  applicable  to  ftreet 
railroads. 

§  511.  Title  epplicable  to  natural  persons  alike  with  corpo- 
rations. 

§  497.  Authority  to  lay  railroad  trades  through 
tlie  streets  and  public  highways  of  any  incorpo- 
rnted  city,  city  and  county,  or  town,  may  be  ob- 
tained for  a  term  of  years  not  exceeding  fifty, 
from  the  trustees,  council,  or  other  body  to  whom 
is  intrusted  the  government  of  the  city,  city  and 
county  or  toAvn,  under  such  restrictions  and  limi- 
tations, and  upon  such  terms  and  payment  of 
license  tax,  as  the  city,  city  and  county,  or  town 
authority  may  provide.  In  no  case  must  permis- 
sion be  granted  to  propel  cars  upon  such  tracks 
otherwise  than  by  electricity,  horses,  mules,  or  by 
Mire  ropes  running  under  the  streets  and  moved 
l>y  stationary  engines,  unless  for  special  reasons 
in  this  title  hereinafter  mentioned;  provided,  how- 
ever, that  such  board  or  body  in  granting  the 
right,  or  at  any  time  after  the  same  is  granted, 
to  use  electricity  or  any  other  of  said  modes,  shall 


§  498  STREET    RAILROAD    CORPORATIONS.  155 

have  power  to  impose  such  terms,  restrictions,  and 
limitations  as  to  the  use  of  streets  and  the  con- 
struction and  mode  of  operating  such  electric 
and  other  roads  as  may,  by  such  board  or  body,  be 
deemed  for  the  public  safety  or  welfare.  [Amend- 
ment approved  February  25,  1891;  Stats.  1891,  p. 
12.    In  effect  immediately.] 

Act  relating  to  sale  of  franchises:  See  post.  Ap- 
pendix, p.  814. 

Act  limiting  time  within  wliich  franchise  may 
be  granted:  See  post,  Appendix,  p.  831. 

Act  validating  ordinance  granting  franchise:  See 
post.  Appendix,  p.  818. 

Act  empowering  railroad  to  use  electricity  or 
steam:  See  post,  Appendix,  p.  830. 

Authority  to  grant  street-railroad  franchises, 
here  given,  is  to  be  construed  in  connection  with 
the  other  sections  of  this  title.  For  example,  see 
sec.  499. 

§  498.  The  city  or  town  authorities,  in  grant- 
ing the  right  of  way  to  street  railroad  corpora- 
tions, in  addition  to  the  restrictions  which  they 
are  authorized  to  impose,  must  require  a  strict 
compliance  with  the  following  conditions,  except 
in  the  cases  of  prismoidal  or  other  elevated  rail- 
ways. In  such  cases,  said  railway  shall  be  re- 
quired to  be  constructed  in  such  a  manner  as  will 
present  the  least  obstruction  to  the  freedom  of  the 
streets  in  which  it  may  be  erected  when  allowed 
by  the  granting  power.  First,  to  construct  their 
traclvs  on  those  portions  of  streets  designated  in 
the  ordinance  granting  the  right,  which  must  be, 
as  nearly  as  possible,  in  the  middle  thereof.  Sec- 
ond, to  plank,  pave,  or  macadamize  the  entire 
length  of  the  street  used  by  their  track,  between 
the  rails,  and  for  two  feet  on  each  side  thereof, 
and  between  the  tracks,  if  there  be  more  than  one, 
and  to  keep  the  same  constantly  in  repair,  flush 


157  STREET  RAILROAD  CORPORATIONS.   §§  499-50J 

with  the  street,  and  with  good  crossings.  Third, 
That  the  trades  must  not  be  more  than  five  feet 
wide  within  the  rails,  and  must  have  a  space  be- 
tween them  sufficient  to  allow  the  cars  to  pass 
each  other  freely.  [Amendment  approved  April 
:;,  1S7G;  Amendments  18T5-G,  77.  In  effect  April 
3,  1870.] 

§  499.  Two  lines  of  street  railway,  operated 
under  different  managements,  may  be  permitted 
to  use  the  same  street,  each  paying  an  equal  por- 
tion for  the  construction  of  the  traclvS  and  appur- 
tenances used  by  said  railways  jointly;  but  in  no 
ease  must  two  lines  of  street  railway,  operated 
under  different  managements,  occupy  and  use  the 
same  street  or  tracks  for  a  distance  of  more  than 
five  blocks  consecutively.  [Amendment  approved 
February  25,  1891;  Stats.  1891,  p.  13.  In  effect 
immediately.] 

§  500.  Any  proposed  railroad  track  may  be  per- 
mitted to  cross  any  track  already  constructed,  the 
crossing  being  made  as  provided  in  Chapter  II.,  Ti- 
tle III,  of  this  part.  In  laying  down  the  track 
and  preparing  therefor,  not  more  than  one  block 
must  be  obstructed  at  any  one  time,  nor  for  a 
longer  period  than  ten  working  days. 

See  sees.  465  et  sea. 

§  501.  The  rates  of  fare  on  the  cars  must  not 
exceed  ten  cents  for  one  fare,  for  any  distance  un- 
der three  miles.  The  cars  must  be  of  the  most  ap- 
proved construction  for  comfort  and  convenience 
of  passengers,  and  provided  with  brakes  to  stop 
the  same,  when  required.  The  rate  of  speed  must 
not  be  greater  than  eight  miles  per  hour.  A  viola- 
tion of  the  provisions  of  this  section  subjects  the 
corporation  to  a  fine  of  one  hundred  dollars  for 
each  offense. 

Civ.    Code. -14. 


I  502  STREET    RAILROAD    CORPORATIONS.  158 

Act  limiting-  and  fixing  rates  of  fares:  See  post, 
Appendix,  p.  821). 

Act  permitting  letter  carriers  to  ride  free:  See 
post,  Aiipendix.  p.  832. 

Kates  of  fare  for  railroad  corporations:  See  sec. 
489.    See,  also,  post,  Appendix,  p.  829. 

§  502.  Work  to  construct  the  railroad  must  be 
commenced  in  good  faith  -within  not  more  than 
one  year  from  the  date  of  the  taldng  effect  of  the 
ordinance  granting  the  right  of  way,  and  said 
work  must  be  completed  within  not  more  tliaa 
three  years  after  the  taking  effect  of  snch  ordi- 
nance; provided,  that  the  governing  body  of  such 
municipal  corporation  at  the  time  of  granting  said 
right  of  way  shall  have  the  power  to  fix  the  time 
for  either  the  commencing  or  completion,  or  both, 
of  said  work:  not,  however,  to  a  time  less  tnan 
six  months  for  commencing,  and  not  less  than 
eighteen  months  for  completing  the  same.  A  fail- 
ure to  comply  with  either  of  the  foregoing  provi- 
sions of  this  section,  or  with  either  of  the  provi- 
sions of  tlie  ordinance  granting  said  right  of  way, 
works  a  forfeiture  of  the  right  of  way,  and  also 
of  the  francliise,  unless  the  uncompleted  portion  is 
al>andoned  by  the  person  or  corporation  to  whom 
said  rirlit  of  way  is  granted,  with  the  consent  of 
tlie  authorities  granting  the  right  of  way,  such 
abandonment  and  consent  to  be  in  writing.  The 
authority  granting  the  right  of  way  sliall  have 
the  poAver  to  grant  an  extension  of  time  for  the 
completion  of  said  work,  if  it  appear  that  the 
work  has  been  commenced  within  the  time  fixed, 
and  prosecuted  in  good  faith;  but  no  extension  of 
time  shall  be  granted  for  the  commencement  of 
said  work,  and  shall  not  be  granted  for  more  than 
one  year  for  the  completion  of  the  same.  All  ex- 
tensions of  time  shall  be  in  writing,  and  made  a 
matter  of  record    in    the    municipality.    Provided 


I'O  STREET    RAILROAD    CORPORATIONS.    §§  503-505 

further,  that  this  Act  shall  not  in  any  way  affect 
any  franchise  or  right  of  way  granted  before  its 
Passage.  [Amendment  approved  February  25, 
js!>5;  Stats.  1895,  p.  IT.    In  effect  immediately.] 

'Fhe  three  preceding  sections  are  founded  on 
Stats.  1803,  297,  sees.  1-5.  This  section  is  also  bas- 
ed on  Stnts.  1870,  482,  sees.  1-6. 

Forfeiture  for  failure  to  commence  work,  of  rail- 
n  ad  corporations:  iSee  sec.  4G8;  generally,  see  sec. 
G.-.8. 

§  503.  Cities  and  towns  in  or  through  which 
street  railroads  run  may  make  such  further  regu- 
lations for  the  government  of  such  street  railroads 
as  may  be  necessary  to  a  full  enjoyment  of  the 
franchise  and  the  enforcement  of  the  conditions 
provided  herein. 

v'  504.  Any  corporation,  or  agent  or  employee 
T^ioreof.  demanding  or  charging  a  greater  sum  of 
money  for  fare  on  the  cars  of  such  street  railroad 
Tlian  that  fixed,  as  provided  in  this  title,  forfeits 
to  the  person  from  whom  such  sum  is  received, 
or  who  is  thus  overcharged,  the  sum  of  two  hun- 
dred dollars,  to  be  recovered  in  a  civil  action,  in 
any  justice's  court  having  jurisdiction  thereof, 
auainst  the  corporation. 

§  505.  Every  street  railroad  corporation  must 
provide,  and,  on  request,  furnish  to  all  persons  de- 
siring a  passage  on  its  cars,  any  required  quantity 
of  passenger  tickets  or  checks,  each  to  be  good 
for  one  ride.  Any  corporation  failing  to  provide 
and  furnish  tickets  or  checks  to  any  person  desir- 
ing to  purchase  the  same  at  not  exceeding  the 
rate  hereinbefore  prescribed,  shall  forfeit  to  such 
pt'rson  the  sum  of  two  hundred  dollars,  to  be  re- 
•  overed  as  provided  in  the  preceding  section,  pro- 
vided, that  the  provisions  of  this  section  shall  not 
apply   to    such    street    railroad    corporations    as 


§§  506-508   STREET    RAILROAD    CORPORATIONS.  130 

charge  but  five  cents  fare.  [Amendment  approved 
March  13,  1883;  Stats.  1883,  84.  In  effect  March 
13,  1883.] 

§  506.  Upon  the  trial  of  an  action  for  any  of 
the  sums  forfeited,  as  provided  in  the  two  preced- 
ing sections,  proof  that  the  person  demanding  or 
receiving  the  monej^  as  fare,  or  for  the  sale  of  the 
ticket  or  check,  was  at  the  time  of  making  the 
demand  or  receiving  the  money,  engaged  in  an  of- 
fice of  the  corporation,  or  vehicle  belonging 
to  the  corporation,  shall  be  prima  facie  evi- 
dence that  such  person  was  the  agent,  servant,  or 
employee  of  the  corporation,  to  receive  the  money 
and  give  the  ticket  or  check  mentioned.  [Amend- 
ment approved  March  30,  1874;  Amendments 
1873-4,  213.    In  effect  July  1,  1874.] 

§  507.  In  every  grant  to  construct  street  rail- 
roads, the  right  to  grade,  sewer,  pave,  macadam- 
ize, or  otherwise  improve,  alter,  or  repair  the 
streets  or  highways,  is  reserved  to  the  corporation, 
and  cannot  be  alienated  or  impaired;  such  work 
to  be  done  so  as  to  obstruct  the  railroad  as  little 
as  possible;  and,  if  required,  the  corporation  must 
shift  its  rails  so  as  to  avoid  the  obstructions  made 
thereby.  [Amendment  approved  March  30,  1874; 
Amendments  1878-4,  214.    In  effect  July  1,  1874.] 

§  508.  Each  street  railroad  corporation  must 
pay  to  the  authorities  of  the  city,  town,  county,  or 
city  and  county,  as  a  license  upon  each  car,  such 
sum  as  the  authorities  may  fix,  not  exceeding  fifty 
dollars  per  annum  in  the  city  of  San  Francisco,  nor 
more  than  twenty-five  dollars  per  annum  in  other 
citii  s  or  tiwns.  Where  any  street  railroad  connects 
or  runs  through  two  or  more  cities  or  towns,  a  pro- 
portionate or  equal  share  of  such  license  tax  must 
be  paid  to  each  of  the  cities  or  towns;  and  no  such 
license  tax  is  due  the  county  authorities  where 


IGl  STREET    RAILROAD    CORPORATIONS.    §§  509-511 

the  same  is  paid  to  any  city  or  town  authority. 
Licenses:  See  Polit.  Cede,  sees.  335G  et  seq. 

§  509.  The  right  to  lay  down  a  tracli  for  ^rad- 
ius' purposes,  and  maintain  the  same  for  a  period 
not  to  exceed  three  years,  may  be  granted  by  the 
corporate  authorities  of  any  city  or  town,  or  city 
and  county,  or  supervisors  of  any  city  or  county, 
but  no  such  traclv  must  remain  more  than  three 
years  upon  any  one  street;  and  it  must  be  laid 
level  with  the  street,  and  must  be  operated  under 
such  restrictions  as  not  to  interfere  with  the  use 
of  the  street  by  the  public.  The  corporate  author- 
ities of  any  city  or  town,  or  city  and  county,  may 
grant  the  right  to  use  steam  or  any  other  motive 
power  in  propelling  the  cars  used  in  such  grading 
tracli.  when  public  convenience  or  utility  demands 
it,  but  the  reasons  therefor  must  be  set  forth  in  the 
ordinance,  and  the  right  to  rescind  the  ordinance 
at  any  time  reserved. 

§  510.  Street  railroads  are  governed  by  the  pro- 
visions of  Title  III  of  this  part,  so  far  as  they  are 
applicable,  unless  such  railroads  are  therein  spe- 
cially excepted.  [Sees.  454-491.]  [Amendment 
approved  March  30,  1874;  Amendments  1ST3-4, 
214.    In  effect  July  1,  1874.] 

See  sees.  4.j4  et  seq. 

§  511.  AYhen  a  street  railroad  is  constructed, 
owned,  or  operated  by  any  natural  person,  this  ti- 
tle is  applicable  to  such  person  in  like  manner  as 
it  is  applicable  to  corporations. 


§§  512,  513       WAGON    ROAD    CORPORATIONS.  162 

TITLE  V. 
WAGON  ROAD  CORPORATIONS. 

§  512.    Three  commissioners  to  act  with   surveyor. 

§  513.  Survey  and  map  to  be  filed  and  approved  by  super- 
visors. 

§  514.  Tolls.  &c.,  to  be  collected.  Penalty  for  taking  un- 
lawful tolls. 

§  51.5.    No  tolls  to  bo  charged  on  highways  or  public  roads. 

§  516.     Retcs  of  toll  to  bo  posted  at  gate. 

§  517.  Toll  gatherer  may  detain  persons  until  they  pay 
toll. 

§  518.    Toll  gatherer  not  to  detain  any  person  unnecessarily. 

§  519.     Persons  avoiding  tolls  to  pay  five  dollais. 

§  520.     Penalties   for  trespasses  on   property   of  corporation. 

§  521.  When  capital  invested  is  repaid,  tolls  to  bo  reduced, 
&c. 

§  522.    May  mortgage  and  hypothecate  corporate  property. 

§  523.  This  title  applies  to  natural  persons  as  well  as  cor- 
porations. 

§  512.  AVbere  a  corporation  is  formed  for  the 
construction  and  maintenance  of  a  wagon  road, 
the  road  must  he  Laid  out  as  follows: 

Three  commissioners  must  act  in  conjunction 
with  the  surveyor  of  the  corporation,  two  to  be 
appointed  by  the  board  of  supervisors  of  tlie  coun- 
ty througli  which  the  road  is  to  run,  and  one  by 
the  corporation,  who  must  lay  out  the  proposed 
road  and  report  their  proceedings,  together  with 
tlie  map  of  the  road,  to  the  sui)ervisors,  as  pro- 
vided in  the  succeeding  section.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4,  214. 
In  effect  July  1,  1874.] 

Sees.  291-294. 

§  513.  When  the  route  is  surveyed,  a  map 
thereof  must  be  submitted  to  and  filed  with  the 
board  of  supervisors  of  each  county  througli  or 
into  which  the  road  runs,  giving  its  general  course 
and  the  principal  points  to  or  by  which  it  runs, 
and  its  width,  which  must  in  no  case  exceed  one 


163  WAGON    ROAD    CORPORATIONS.  §  514 

hundred  feet,  and  the  supervisors  must  either  ap- 
prove or  reject  the  survey.  If  approved,  it  must 
he  entered  of  record  on  the  journal  of  the  board, 
and  such  approval  authorizes  the  use  of  all  public 
lauds  and  highways  over  which  the  survey  runs; 
but  the  board  of  supervisors  must  require  the  cor- 
poration, at  its  OAvn  expense,  and  the  corporation 
must  so  change  and  open  the  highway  so  taken 
and  used  as  to  malve  the  same  as  good  as  they 
were  before  the  appropriation  tliereof:  and  must 
so  construct  all  crossings  of  public  highways  over 
and  by  its  road,  and  its  toll  gates,  as  not  to  hin- 
der or  obstruct  the  use  of  the  same. 
See  supra,  sec.  515. 

§  514.  All  wagon  road  corporations  may  bridge 
or  keep  ferries  on  streams  on  the  line  of  their 
road,  and  must  do  all  things  necessary  to  keep  the 
same  in  repair.  They  may  take  such  tolls  only  on 
their  roads,  ferries,  or  bridges,  as  are  fixed  by  the 
board  of  supervisors  of  the  proper  county  tlirough 
which  the  road  passes,  or  in  which  the  ferry  or 
bridge  is  situate,  except  that  in  the  counties  of 
Klamath,  Butte,  Del  Xorte,  Plumas,  Humboldt, 
and  Sierra,  the  directors  may  fix  their  own  tolls; 
but  in  no  case  must  the  tolls  be  more  than  suffi- 
cient to  pay  fifteen  per  cent,  nor  less  than  ten  per 
cent  per  annum  on  the  cost  of  construction,  after 
paying  for  repairs  and  other  expenses  for  attend- 
ing to  the  roads,  bridges,  or  ferries.  If  tolls,  other 
than  as  herein  provided,  are  charged  or  demanded, 
the  corporation  forfeits  its  franchise,  and  must 
pay  to  the  party  so  charged  one  hundred  dollars 
as  liquidated  damages.  [Approved  March  28, 
1874;  Amendments  1873-4,  272.  In  effect  Mav  28, 
1874.] 

Toll  on  bridge,  obtaining  consent  of  supervisors: 
See  sec.  528,  ante. 


§§  515-520       WAGON    ROAD    CORPORATIONS.  164 

Sale  of  franchise  under  execution:  See  sec.  388. 
Toll  roads:  Tolit.  Code,  sees.  2779  et  seq. 

§  515.  When  any  highway  or  public  road  is 
taiven  and  used  by  any  Avagon  road  corporation  as 
a  part  of  its  road,  the  corporation  must  not  place 
a  toll  gate  on  or  take  tolls  for  the  use  of  such  high- 
way or  public  road  bj^  teamsters,  travelers,  drov- 
ers, or  any  one  transporting  property  over  the 
same. 

See  infra,  sec.  513. 

§  516.  The  corporation  must  atFix  and  keep  up, 
at  or  over  each  gate,  or  in  some  conspicuous  place, 
so  as  to  be  conveniently  read,  a  printed  list  of  the 
rates  of  toll  levied  and  demanded. 

§  517.  Each  toll  gatherer  may  prevent  from 
passing  through  his  gate  persons  leading  or  driv- 
ing animals  or  vehicles  subject  to  toll,  until  they 
shall  have  paid,  respectively,  the  tolls  authorized 
to  be  collected. 

§  518.  Every  toll  gatherer  who,  at  any  gate, 
unreasonably  hinders  or  delays  any  traveler  or 
passenger  llnble  to  the  payment  of  toll,  or  demands 
or  receives  from  any  person  more  than  he  is  au- 
thorized to  collect,  for  each  offense  forfeits  the 
sum  of  tAventy-five  dollars  to  the  person  aggrieved. 

§  519.  Every  person  who,  to  avoid  the  payment 
of  the  legal  toll,  with  his  team,  vehicle,  or  horse, 
turns  out  of  a  wagon,  turnpike,  or  plank  road,  or 
passes  any  gate  thereon  or  ground  adjacent  there- 
to, and  again  enters  upon  such  road  for  each  of- 
fense forfeits  the  sum  of  five  dollars  to  the  cor- 
poration injured. 

§  520.    Every  person  who: 

1.    Willfully  breaks,  cuts  down,  defaces,  or  in- 


165  WAGON    ROAD    CORPORATIONS.        §§  521-523 

jures  any  milestone  or  post  on  any  wagon,  turn- 
pike, or  plank  road;  or, 

2.  Willfully  breaks  or  throws  down  any  gate  on 
such  road;  or, 

3.  Digs  up  or  injures  any  part  of  such  road,  or 
anything  thereunto  belonging;  or, 

4.  Forcibly  or  fraudulently  passes  any  gate 
thereon  without  having  paid  the  legal  toll; 

For  each  offense  forfeits  to  the  corporation  in- 
jured the  sum  of  twenty-five  dollars,  in  addition  to 
the  damages  resulting  from  his  wrongful  act. 

§  521.  The  entire  revenue  derived  from  the 
road  shall  be  appropriated:  first,  to  repayment  to 
the  corporation  of  the  costs  of  its  construction, 
together  with  the  incidental  expenses  incurred  in 
collecting  tolls  and  keeping  the  road  in  repair; 
and,  second,  to  the  payment  of  the  dividend  among 
its  stockholders,  as  provided  in  section  five  hun- 
dred and  fourteen.  AVhen  the  repayment  of  the 
cost  of  construction  is  completed,  the  tolls  must 
be  so  reduced  as  to  raise  no  more  than  an  amount 
sufficient  to  pay  said  dividend,  and  incidental  ex- 
penses, and  to  keep  the  road  in  good  repair. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  215.    In  effect  July  1,  1874.] 

§  522.  The  corporation  may  mortgage  or  hy- 
pothecate its  road  and  other  property  for  funds  with 
which  to  construct  or  repair  their  road,  but  no 
mortgage  or  hypothecation  is  valid  or  binding  un- 
less at  least  twenty-five  per  cent,  of  the  capital 
stock  subscribed  has  been  paid  in  and  invested 
In  the  construction  of  the  road  and  appurtenances, 
and  then  only  after  an  affirmative  vote  of  two- 
thirds  of  the  capital  stock  subscribed. 

§  523.  When  a  wagon,  turnpike,  or  plank  road 
is  constructed,  owned,  or  operated  by  any  natural 


§§  528,  529   BRIDGE,    FERRY,    ETC.,    CORPORATIONS.   166 

person,  this  title  is  applicable  to  sucli  person  in 
lil:e  manner  as  it  is  applicable  to  corporations. 

Construction  of  Toll   Roads:   See    Polit.     Code, 
sees.  2779-2S31. 


TITLE  VI. 

BRIDGE,    FERRY,    WHARF,    CHUTE,    AND    PIER    COR- 
PORATIONS. 

§  528.     Corporation  to  obtain  license  from  supervisors. 

§  529.     lu  what  contingencies  corporate  existence  ceases. 

§  530.  President  and  secretary  to  make  annual  report,  and 
■what  to  contain.     Damages  for  failing  to  report. 

§  531.  This  title  to  apply  to  natural  persons  alilie  with  cor- 
porations. 

§  528.  No  corporation  must  construct  or  take 
tolls  on  a  bridge,  ferry,  wharf,  chute,  or  pier  un- 
til authority  is  granted  therefor  by  the  super- 
visors. 

Public  ferries  and  toll  bridges:  See  Polit.  Code, 
sees.  2843   et  sea. 

§  529.  Every  such  corporation  ceases  to  be  a 
body  corporate: 

1.  If,  within  six  months  from  filing  its  articles 
of  incorporation,  it  has  not  obtained  such  author- 
ity from  the  board  of  supervisors;  and  if,  within 
one  year  thereafter,  it  has  not  commenced  the 
construction  of  the  bridge,  wharf,  chute,  or  pier, 
and  actually  expended  thereon  at  least  ten  per 
cent,  of  the  capital  stock  of  the  corporation; 

2.  If,  within  three  years  from  filing  the  arti- 
cles of  incorporation,  the  bridge,  wharf,  chute, 
or  pier  is  not  completed; 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier 
of  the  corporation  is  destroyed,  it  is  not  recon- 
structed and  ready  for  use  within  three  years 
thereafter; 

4.  If  the  ferry  of  any  such  corporation  is  not  in 
running  order  within  three  months  after  authority 


167  BRIDGE,   FERRY,    ETC.,    CORPORATIONS.       §  530 

is  obtained  to  establish  it,  or  if  at  any  time  there- 
after it  ceases,  for  a  like  term  consecutively',  to 
perform  the  duties  imposed  by  law. 

§  530.  The  president  and  secretary  of  every 
bridge,  ferry,  wlmrf,  chute,  or  pier  corporation 
must  annually,  under  oath,  report  to  the  board  of 
supervisors  of  the  county  in  which  the  articles  of 
incorporation  are  filed: 

1.  The  cost  of  constructing  and  providing  all 
necessarj'  appendages  and  appurtenances  for  their 
bridge,  ferry,  wharf,  chute,  or  pier; 

2.  The  amount  of  all  moneys  expended  thereon, 
since  its  construction,  for  repairs  and  incidental 
expenses; 

3.  The  amount  of  their  capital  stock,  how  much 
paid  in,  and  how  much  actually  expended  thereof; 

4.  The  amount  received  during  the  year  for  tolls 
and  from  all  other  sources,  stating  each  sepa- 
rately; 

5.  The  amount  of  dividends  made,  and  the  in- 
debtedness of  the  corporation,  specifying  for  what 
it  was  incurred; 

G.  Such  other  facts  and  particulars  respecting 
the  business  of  the  corporation  as  the  board  of 
supervisors  may  require. 

This  report  the  president  and  secretary  must 
cause  to  be  pul)lished  for  four  weeks  in  a  daily 
newspaper  published  nearest  the  bridge,  ferry, 
wharf,  pier,  or  chute,  if  required  by  order  of  the 
board  of  supervisors.  A  failure  to  make  such  re- 
port subjects  the  corporation  to  a- penalty  of  two 
hundred  dollars:  and  for  every  week  permitted  to 
elapse  after  such  fnilure,  an  additional  penalty  of 
fifty  dollars;  payable  in  each  case  to  the  county 
from  which  the  authority  of  the  corporation  was 
derived.  All  such  cases  must  be  reported  by  the 
board  of  supervisors  to  the  district  attorney,  who 
must  commence  an  action  therefor. 


§§  531-537         TELEGRAPH   CORPORATIONS.  168 

§  531.  When  a  bridge,  ferry,  wliarf,  chute,  or 
pier  is  constructed,  operated,  or  owned  by  a 
natural  person,  this  title  is  applicable  to  such  per- 
son in  like  manner  as  it  is  applicable  to  corpora- 
tions. 

General  provisions:  Public  Ferries  and  Toll 
Bridi?es,  Polit.  Code,  sees.  2843-2895;  Wharves, 
Chutes,  and  Piers,  Polit.  Code,  sees.  2906-2920. 


TITLE  VII. 
TELEGRAPH  CORPORATIONS. 

§  536.  May  use  right  of  way  along  waters,  roads,  and  high- 
ways. 

§  537.  Persons  liable  for  damages  for  injuring  telegraph 
property. 

§  538.  Party  guilty  of  willful  and  malicious  injury,  liable  to 
one  hundred  times  actual  damages. 

§  539.  Conditions  on  which  damage  to  subaqueous  cable 
may  be  recovered. 

§  540.    May  dispose  of  certain  rights. 

§  541.  Rates  of  charges  to  be  fixed,  and  how  published. 
(Repealed.) 

§  536.  Telegraph  corporations  may  construct 
lines  of  telegraph  along  and  upon  any  public  road 
or  highAvaj',  along  or  across  any  of  the  waters 
or  lands  within  this  State,  and  may  erect  poles, 
posts,  piers,  or  abutments  for  supporting  the  insu- 
lators, wires,  and  other  necessary  fixtures  of  their 
lines,  in  such  manner  and  at  such  points  as  not  to 
incommode  the  public  use  of  the  road  or  high- 
way, or  interrupt  the  navigation  of  the  waters. 

For  an  act  to  facilitate  telegraphic  communica- 
tion between  America  and  Asia,  approved  Febru- 
ary 13,  1874;  Stats.  1871-2,  97. 

Telegrnph  companies  are  common  carriers:  See 
sees.  2207    et  sea. 

§  537.  Any  person  who  injures  or  destroys, 
through  want  of  proper  care,   any  necessary  or 


169  TELEGRAPH    CORPORATIONS.  §§  538-541 

useful  fixture  of  any  telegraph  corporation,  is  lia- 
ble to  the  corporation  for  all  damages  sustained 
thereby.  Any  vessel  which,  by  dragging  its  an- 
chor or  otherwise,  breaks,  injures,  or  destroys  the 
subaqueous  cable  of  a  telegraph  corporation,  sub- 
jects its  owner  to  the  damages  hereinbefore  spec- 
ified. 

§  538.  Any  person  who  willfully  and  malicious- 
ly does  any  injury  to  any  telegraph  property  men- 
tioned in  the  preceding  section,  is  liable  to  the 
corporation  for  one  hundred  times  the  amount  of 
actual  damages  sustained  tlierel)y.  to  be  recovered 
in  any  court  of  competent  jurisdiction. 

§  539.  No  telegraph  corporation  can  recover 
damages  for  the  brealdng  or  injury  of  any  sub- 
aqueous telegraph  cable,  unless  such  corporation 
has  previously  erected  on  either  bank  of  the 
waters  under  which  the  cable  is  placed,  a  monu- 
ment, indicating  the  place  where  the  cable  lies, 
and  publishes  for  one  month  in  some  newspaper 
most  likely  to  give  notice  to  navigators,  a  notice 
giving  a  description  and  tlie  purpose  of  the  mon- 
uments, and  the  general  course,  landings,  and  ter- 
mini of  the  cable. 

§  540.  Any  telegraph  corporation  may  at  any 
time,  with  the  consent  of  the  persons  holding  two- 
thirds  of  the  issued  stock  of  the  corporation,  sell, 
lease,  assign,  transfer,  or  convey  any  rights,  priv- 
ileges, franchises,  or  property  of  the  corporation, 
except  its  corporate  franchise. 

§  541.     [Repealed,  March  30,  1874;  Amendments 
1873-4,  21G.    In  effect  July  1,  1874.] 
Civ,   Code.— 15. 


§§  548,  549  WATER  AND   CANAL  CORPORATIONS.  170 

TITLE  VIII. 

WATER  AND  CANAL  CORPORATIONS. 

§  548.  Corporation  may  obtain  contract  to  supply  city  or 
town. 

§  549.  Duties  of  corporation.  Rates  fixed  by  commission- 
ers. 

§  550.     R  ght  to  use  streets,  ways,  alleys,  and  roads. 

§  551.     To  build  and  keep  bridges  in  repair. 

§  552.    Irrigation.    Easement  and  water  rates. 

§  548.  No  corporation  formed  to  supply  any- 
city,  city  and  county,  or  town  with  water  must 
do  so  unless  previously  authorized  by  an  ordinance 
of  the  authorities  thereof,  or  unless  it  is  done  in 
conformity  Avith  a  contract  entered  into  between 
the  city,  city  and  county,  or  town  and  the  cor- 
poration. Contracts  so  made  are  valid  and  bind- 
ing- in  law,  but  do  not  talve  from  the  city,  city 
and  county,  or  town  the  right  to  regulate  the  rates 
for  water,  nor  must  any  exclusive  right  be  grant- 
ed. No  contract  or  grant  must  be  made  for  a  term 
exceeding  fifty  years. 

Stats.  1852,  171,  sec.  2;  sees.  1410  et  seq. 

Act  authorizing  supervisors  to  fix  rates:  See 
post,  Appendix,  p.  850. 

§  549.  All  corporations  formed  to  supply  water 
to  cities  or  towns  must  furnish  pure  fresh  water 
to  the  inhabitants  thereof,  for  family  uses,  so 
long  as  the  supply  permits,  at  reasonable  rates 
and  without  distinction  of  persons,  upon  proper 
demand  therefor;  and  must  furnish  water  to  the 
extent  of  their  means,  in  case  of  fire  or  other 
great  necessity,  free  of  charge.  The  rates  to  be 
charged  for  water  must  be  determined  by  com- 
missioners, to  be  selected  as  follows:  two  by  the 
city  and  county  or  city  or  town  authorities,  or, 
when  there  are  no  city  or  town  authorities,  by  the 


171  WATER  AND  CANAL  CORPORATIONS.   §§  550,  551 

board  of  supervisors  of  the  county,  and  two  by  the 
water  comijanj-;  aud  in  case  a  majority  cannot 
agree  to  the  valuation,  the  four  commissioners 
must  choose  a  fiftli  commissioner;  if  they  cannot 
agree  upon  a  fiftli,  then  the  county  judge  of  the 
county  must  appoint  such  fifth  person.  The  de- 
cision of  the  majority''  of  the  commissioners  shall 
determine  the  rates  to  be  charged  for  water  for 
one  year,  aud  until  new  rates  are  established. 
The  board  of  supervisors,  or  the  proper  city  or 
town  authorities,  may  prescribe  proper  rules  re- 
lating to  the  delivery  of  water,  not  inconsistent 
with  the  laws  of  the  State.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4,  216. 
In  effect  July  1,  1874.] 
Stats.  ISoS,  219,  sec.  4. 

§  550.  Any  corporation  created  under  the  pro- 
visions of  this  part,  for  the  purposes  named  in 
this  title,  subject  to  the  reasonable  direction  of 
the  board  of  supervisors,  or  city  or  town  authori- 
ties, as  to  the  mode  and  manner  of  using  such 
right  of  way,  may  use  so  much  of  the  streets, 
ways,  and  alleys  in  any  town,  city,  or  city  and 
county,  or  any  public  road  therein,  as  may  be 
necessary  for  laying  pipes  for  conducting  water 
into  any  such  town,  city,  or  city  and  county,  or 
through  or  into  any  part  thereof. 
'  Stats.  1SG8,  220,  sec.  5. 

§  551.  Every  water  or  canal  corporation  must 
construct  and  keep  in  good  repair,  at  all  times, 
for  public  use,  across  their  canal,  flume,  or  water 
pipe,  all  of  the  bridges  that  the  board  of  super- 
visors of  the  county  in  which  such  canal  is  sit- 
uated may  require,  the  bridges  being  on  the  lines 
of  public  highways  and  necessary  for  public  uses 
in  connection  with  such  highways;  and  all  water- 


§552         WATER   AND    CANAL    CORPORATIONS.  172 

works  must  be  so  laid  and  constructed  as  not  to 
obstruct  public  highways. 

Stats.  1802,  541,  sec.  4:  See  sees.  1410,  et  seq. 

See  the  earlier  acts  upon  canal  and  ditch  cor- 
porations: Act  May  14,  18G2,  Stats.  18G2,  541;  and 
the  subsequent  act,  April  2,  1870,  Stats.  1870,  6G0. 
See  also  Statutes  in  Force,  tit.  Water  Commis- 
sioners. 

Act  of  March  30.  1872,  Relative  to  Formation  of 
Canal  and  Ditch  Corporations,  Stats.  1871-2,  p. 
738. 

§  552.  Whenever  any  corporation,  organized 
under  the  laws  of  this  State,  furnishes  water  to 
irrigate  lands  which  said  corporation  has  sold,  the 
right  to  the  flow  and  use  of  said  water  is  and  shall 
remain  a  perpetual  easement  to  the  land  so  sola, 
at  such  rates  and  terms  as  may  be  established  by 
said  corporation  in  pursuance  of  law.  And  when- 
ever any  person  who  is  cultivating  land,  on  the 
line  and  within  the  flow  of  any  ditch  owned  by 
such  corporation,  has  been  furnished  water  by  it, 
with  which  to  irrigate  his  land,  such  person  shall 
be  entitled  to  the  continued  use  of  said  water, 
upon  the  same  terms  as  those  who  have  purchased 
their  land  of  the  corporation.  [New  section  ap- 
proved April  3,  187G;  Amendments  1875-6,  77.  In 
effect  April  3,  187G.] 

Irrignlion,  laws  relating  to:  See  Statutes  in 
force,  title  Irrigation. 

Act  regulating  sale,  rental,  and  distribution  of 
appropriated  water:  See  post,  Appendix,  p.  S3G. 


173  HOMESTEAD    CORPORATIONS.  §§  557-559 

TITLE  IX. 

HOMESTEAD  CORPORATIONS. 

§  557.     Time  of  corporate  existence. 

§  558.  By-laws  must  specify  time  for  and  amount  of  pay- 
ment of  installments,  and  penaltj^  for  failure  to 
pay.  By-laws  to  be  furnished  to  any  member  on 
demand. 

§  559.  Advei  tisement  and  sale  of  delinquent  and  forfeited 
shares. 

§  560.  May  borrow  and  loan  funds— how,  and  for  what 
time. 

§  561.  Minor  children,  wards,  and  married  women  may  own 
stock. 

§  562.  Forfeiture  for  speculating  in  or  owning  lands  ex- 
ceeding two  hundred  thousand  dollars. 

§  5G3.    "SVhen   corporation   is  terminated,  and  how. 

§  5G4.     Paymf-nt  of  premiums. 

§  565.     Annual  repoit  to  be  published. 

§  566.     Publication  in  certain  cases. 

§  557.  Corporations  organized  for  the  purpose 
of  acquiring-  lands  in  large  tracts,  paying  oft"  in- 
cumbrances thereon,  improving  and  subdividing 
them  into  homestead  lots  or  parcels,  and  distrib- 
uting them  among  the  shareholders,  and  for  the 
accumulation  of  a  fund  for  such  purposes,  are 
known  as  homestead  corporations,  and  must  not 
have  a  corporate  existence  for  a  longer  period 
than  ten  years. 

Time  of  corporate  existence:  See  post,  Ap- 
pendix, p.  773. 

§  558.  Such  corporations  must  specify  in  their 
by-laws  llie  times  Avhen  the  installments  of  the 
capital  stock  are  payable,  the  amount  thereof,  and 
tlie  fines,  penalties,  or  forfeitures  incurred  in  case 
of  default.  A  printed  copy  of  the  articles  of  in- 
corporal  ion  and  by-laws  must  be  furnished  to  any 
shareholder  on  demand. 

§  559.    Whenever  any  shares  of  stock  are  de- 


§  560  HOMESTEAD    CORPORATIONS.  174 

clared  forfeited,  by  resolution  of  the  board  of  di- 
rectors, the  directors  may  advertise  the  same  for 
sale,  giviug  the  name  of  the  subscriber  and  the 
number  of  shares,  by  notice  of  not  less  than  three 
weeks,  published  at  least  once  a  week  in  a  news- 
paper of  general  circulation  in  the  city,  town,  or 
county  where  the  principal  place  of  business  of 
such  corporation  is  located.  Such  sale  must  be 
made  at  auction,  under  the  direction  of  the  secre- 
tary of  the  company.  The  corporation  may  be  a 
bidder,  and  the  shares  must  be  disposed  of  to  the 
hi,£rhest  bidder  for  cash.  No  defect,  informality, 
or  irregularity  in  the  proceedin.as  respectinc:  the 
sale  invalidates  it,  if  notice  is  .aiven  as  herein  pro- 
vided. After  the  sale  is  made  the  secretary  must, 
on  receipt  of  the  purchase  money,  transfer  to  the 
purchaser  the  shares  sold,  and  after  deducting 
from  the  proceeds  of  such  sale  all  installments 
then  due.  and  all  expenses  and  charges  of  sale, 
must  hold  the  residue  subject  to  the  order  of  the 
delinquent  subscriber. 

§  560.  Homestead  corporations  may  borrow 
money  for  the  purposes  of  the  corporation,  not  ex- 
ceeding at  any  one  time  one-fourth  of  the  aggre- 
gnte  amount  of  the  shares  or  parts  of  shares  actu- 
ally paid  in,  and  the  income  thereof;  no  greater 
rate  of  interest  must  be  paid  therefor  than  twelve 
per  cent,  per  annum.  For  the  purpose  of  complet- 
ing the  purchase  of  lands  intended  to  be  divided 
and  distributed,  they  may  borrow  on  the  security 
of  their  shares  on  the  laud  thus  purchased,  or  that 
owned  by  the  corporation  at  the  time  of  procuring 
the  loan,  any  sum  of  money  which,  together  with 
the  interest  contracted  to  become  due  thereon,  will 
not  exceed  ninety  per  cent,  of  the  unpaid  amount 
subscribed  by  the  shareholders;  but  no  loan  mnst 
be  made  to  the  corporation  for  a  term  extendmg 
beyond  that  of  its  existence. 


175  HOMESTEAD    CORPORATIONS.  §§  561-563 

§  561.  Such  shares  of  stock  in  homestead  cor- 
poratious  as  may  be  acquired  by  children,  tlie  cost 
of  which,  aud  the  deposits  aud  assessments  on 
which  are  paid  from  the  personal  earnings  of  the 
children,  or  with  gifts  from  persons  other  than 
tlieir  male  parents,  may  be  taken  and  held  for 
them  by  their  parents  or  guardians.  Married 
women  may  hold  such  shares  as  they  acquire  with 
then*  personal  earnings,  or  those  of  their  chihlren, 
voluntarily  bestowed  therefor,  or  from  property 
bequeathed  or  given  to  them  by  persons  other 
than  their  husbands. 

§  562.  Homestead  corporations  must  not  pur- 
chase and  sell,  or  otherwise  acquire  and  dispose 
of  real  property,  or  any  interest  therein,  or  any 
personal  property,  for  the  sole  purpose  of  specula- 
tion or  profit.  Xcr  must  any  such  corporation  at 
any  one  time  own  .or  hold,  in  trust  or  otherwise, 
for  its  purposes,  real  property,  or  any  interest 
Therein,  which  in  the  aggregate  exceeds  in  cash 
value  the  sum  of  two  hundred  thousand  dollars. 
For  any  violation  of  the  provisions  of  this  section 
corporations  forfeit  their  corporate  rights  and 
powers.  On  the  application  of  any  citizen  to  a 
court  of  competent  jurisdiction  such  forfeiture 
may  be  adjudged,  and  the  judgment  carries  with 
it  costs  of  the  proceedings. 

§  563.  Except  fcr  the  purpose  of  winding  up 
and  settling  its  affairs,  every  homestead  corpora- 
tion must  terminate  at  the  expiration  of  the  time 
fixed  for  its  existence  in  the  articles  of  incor- 
poration, or  when  dissolved  as  provided  in  this 
part.  No  dividend  of  funds  must  be  made  on  ter- 
minntion  of  its  corporate  existence,  until  its  debts 
and  liabilities  are  paid:  aud  upon  the  final  settle- 
ment of  the  affairs  of  the  corporation,  or  upon  the 
termination  of  its  corporate  existence,  the  direct- 
ors, in  such  manner  as  they  may  determine,  must 


§§  564-566         HOMESTEAD    CORPORATIONS.  176 

divide  its  property  among  its  shareholders  in  pro- 
portion to  their  respective  interests,  or,  upon  the 
application  of  a  majority  in  interest  of  the  stoclv- 
holders,  must  sell  and  dispose  of  any  or  all  of  the 
renl  estate  of  the  corporation  upon  such  terms  as 
may  he  most  conducive  to  the  interests  of  all  the 
stoclcholders,  and  must  convey  the  same  to  the 
purchaser,  and  distribute  the  proceeds  among  the 
shareholders,  or  may  at  any  time,  when  best  for 
the  interests  of  all  the  shareholders,  cause  the 
lauds  of  the  corporation  to  be  subdivided  into  lots 
and  distributed,  by  sale  for  premiums,  at  auction 
or  otherwise,  among  the  shareholders. 

§  564.  Such  premiums  on  lots  may  be  made 
payable  at  the  time  they  are  bid  off,  and,  if  not 
so  paid  on  any  lot  of  land,  the  directors  may  im- 
mediately offer  the  same  for  sale  again.  If  made 
payable  at  a  future  day,  and  any  shareholder  fails 
to  ])ny  his  bid  on  the  day  the  same  is  made  due 
and  payable,  the  directors  may  advertise  and  sell 
the  shares  of  stock  representing  the  lots  of  land 
on  which  the  premiums  remain  unpaid,  in  the 
manner  provided  in  the  by-laws  for  the  sale  of 
shares  on  account  of  delinquent  installments  and 
premiums. 

§  565.  The  actual  financial  condition  of  all 
homestead  corporations  must,  by  the  directors 
thereof,  be  published  annually  in  the  [a]  newspa- 
per published  at  the  principal  place  of  business 
of  the  corporation,  for  four  weel^s,  if  published 
in  a  Aveekly,  and  two  weeks,  if  published  in  a 
daily.  The  statement  must  be  made  up  to  the 
end  of  each  year,  and  must  be  verified  by  the 
oath  of  the  president  and  secretary,  showing  the 
items  of  property  and  liabilities. 

§  566.  In  any  case  in  which  a  publication  is  re- 
quired, and  no  newspaper  is  published  at  the  prin- 


177  SAVINGS    AND    LOAN    CORPORATIONS.         §  571 

cipal  place  of  business,  the  publication  may  be 
made  in  a  paper  published  in  an  adjoining  county. 
See  Act  of  ^[arch  23.  1874,  Relative  to  Home- 
stead Corporations,  Appendix,  p.  77G. 


TITLE  X. 

SAVINGS  AND  LOAN  CORPORATIONS. 

§  .571.  May  loan  money— on  what  terms,  how,  and  to  whom, 
and  how  long. 

§  572.     Capital  Ptock,  and  rights  and  privileges  thereof. 

§  573.  No  dividends,  except  from  surplus  profits.  To  con- 
tract no  liability,  except  for  deposits. 

§  574.  Property  which  may  be  owned  by  corporations,  and 
how  disposed  of.  Restrictions  in  purchases  as  pro- 
vided  above. 

§  575.  Married  women  and  minors  may  own  stock  in  their 
own  right. 

§  576.  May  issue  transferable  certificates  of  deposit.  Special 
certificates. 

§  577.     To  provide  reserve  fund  for  the  payment  of  losses. 

§  578.  Prohibiuon  on  director  and  officer,  and  what  va- 
cates office. 

I  579.    Definition  of  phrase  "create  debts." 

Stats.  18G2,  199,  sees.  4,  5;  18G4,  158,  sec.  2. 
BanIvS  cannot  be  created  except  under  general 
laws:  Const.  Cal.,  art.  12,  sec.  5. 

§  571.  Corporations  organized  for  the  purpose 
of  accumulating  and  loaning  the  funds  of  their 
members,  stocl-iholders,  and  depositors,  may  loan 
and  invest  the  funds  thereof,  receive  deposits  of 
money,  loan,  invest,  and  collect  the  same,  with 
interest,  and  may  repay  depositors  with  or  with- 
out interest.  No  such  corporation  must  loan 
money,  except  on  adequate  security  on  real  or 
personal  property,,  and  such  loan  must  not  be  for 
a  longer  period  than  six  years. 

Act  relating  to  banking  corporations  repealed: 
See  post.  Appendix,  p.  714. 

Act  compelling  bank  to  publish  statement  of 
unclaimed  deposits:  See  post.  Appendix,  p.  716. 


§§  572-574   SAVINGS  AND   LOAN   CORPORATIONS.  178 

Act  providiug  for  dissolution  and  winding  up  of 
savings  baulks  and  trust  companies:  See  post,  Ap- 
pendix, p.  721. 

§  572.  \\'lien  savings  and  loan  corporations 
have  a  capital  stock  specified  in  their  articles  of 
incorporation,  certificates  of  the  ownership  of 
shares  mny  be  issued;  and  the  rights  and  priv- 
ileges to  be  accorded  to,  and  the  obligations  to  be 
Imposed  upon,  such  capital  stock,  as  distinct  from 
those  of  depositors,  must  be  fixed  and  defined, 
either  in  the  articles  of  incorporation  or  in  the  by- 
laws- 
Stats.  18()2.  203,  sec.  17. 

Stats.  1870,  130,  sec.  1;  18G2,  199,  sees.  10,  22. 
Increase  of  capital  stock:  See  post.  Appendix,  p. 
710. 

§  573.  The  directors  of  savings  and  loan  cor- 
porations may,  at  such  times  and  in  such  manner 
as  the  by-laws  prescribe,  declare  and  pay  divi- 
dends of  so  much  of  the  profits  of  the  corpora- 
tion, and  of  the  interest  arising  from  the  capital 
stock  and  deposits,  as  may  be  appropriated  for 
that  purpose  under  the  by-laws  or  under  their 
agreements  with  depositors.  The  directors  must 
not  contract  any  debt  or  liability  against  the  cor- 
poration for  any  purpose  whatever,  except  for  de- 
posits. The  capital  stock  and  the  assets  of  the 
corporation  are  a  security  to  depositors  and  stock- 
holders, depositors  having  the  priority  of  security 
over  the  stockholders,  but  the  by-laws  may  pro- 
vide that  the  same  security  shall  extend  to  de- 
posits made  by  stockholders. 

Act  prohibiting  dividing  or  withdrawing  of  cap- 
ital stock:  See  post,  Appendix,  p.  719. 

§  574.  Savings  and  loan  corporations  may  pur- 
chase, hold  and  convey  real  and  personal  prop- 
erty,   as   follows: 


179  SAVINGS  AND  LOAN  CORPORATIONS.  §  574 

1.  The  lot  and  bniklins:  in  which  the  business 
of  the  corporation  is  carried  on,  the  cost  of  which 
must  not  exceed  one  hundred  thousand  dollars; 
except,  on  a  vote  of  two-thirds  of  the  stoclchold- 
ers,  the  corporation  may  increase  the  sum  to  an 
amount  not  exceeding  two  hundred  and  fifty  thou- 
sand dollars; 

2.  Such  as  may  have  been  mortgaged,  pledged, 
or  conveyed  to  it  in  trust,  for  its  benefit  in  good 
faith,  for  money  loaned  in  pursuance  of  the  regu- 
lar business  of  the  corporation; 

3.  Such  as  may  have  been  purchased  at  sales 
under  pledges,  mortgages,  or  deeds  of  trust  made 
for  its  benefit,  for  money  so  loaned,  and  such  as 
may  be  conveyed  to  it  by  borrowers  in  satisfac- 
tion and  discharge  of  loans  made  thereon; 

4.  No  such  corporation  must  purchase,  hold,  or 
convey  real  estate  in  any  other  case  or  for  any 
other  purpose;  and  all  real  estate  described  in  sub- 
division three  of  this  section  must  be  sold  by  the 
corporation  within  five  years  after  the  title  there- 
to is  vested  in  it  by  purchase  or  otherwise; 

5.  No  corporation  must  purchase,  own,  or  sell 
personal  property,  except  such  as  may  be  requisite 
for  its  immediate  accommodation  for  the  con- 
venient transaction  of  its  business,  mortgages  on 
real  estate,  bonds,  securities,  or  evidences  of  in- 
debtedness, public  or  private,  gold  and  silver  bul- 
lion, and  United  States  mint  certificates  of  ascer- 
tained value,  and  evidences  of  debt  issued  by  thf 
United  States; 

6.  No  corporation  must  purchase,  hold,  or  con- 
vey bonds,  securities,  or  evidences  of  indebted- 
ness, public  or  private,  except  bonds  of  the  United 
States,  of  the  State  of  California,  and  of  the  coun- 
ties, cities,  or  cities  and  counties,  or  towns  of  the 
State  of  California,  unless  such  corporation  ha^ 
a  capital  stoclj  or  reserved  fund  paid  in,  of  not 
less  than  three  hundred  thousand  dollars.      [Ap- 


§§  575-577  SAVINGS   AND   LOAN   CORPORATIONS.  180 

proved  March  18,  1874;  Amendments  1873-4,  273. 
In  effect  immediately.] 

§  575.  Married  women  and  minors  may,  in 
their  own  right,  malje  and  draw  deposits  and  draw 
dividends,  and  give  valid  receipts  therefor. 

Stats.  18G2,  199,  sees.  14,  15;  1864,  158,  sec.  4; 
1870,  132,  sees.  2,  3. 

§  576.  Savings  and  loan  corporations  may  is- 
sue general  certificates  of  deposit,  wliich  are  trans- 
ferable, as  in  other  cases,  by  indorsement  and  de- 
livery; may  issue,  when  requested  by  the  deposi- 
tor, special  certificates,  acknowledging  the  de- 
posit by  the  person  therein  named  of  a  specified 
sum  of  money,  and  expressly  providing  on  the  face 
of  such  certificate  that  the  sum  so  deposited  and 
therein  named  may  be  transferred  only  on  the 
boolcs  of  the  corporation;  payment  thereafter  made 
by  the  corporation  to  the  depositor  named  in  such 
certificate,  or  to  his  assignee  named  upon  the 
boolvs  of  the  corporation,  or,  in  case  of  death,  to 
the  legal  representative  of  such  person,  of  the  sum 
for  which  such  special  certificate  was  issued,  dis- 
charges the  corporation  from  all  further  liability 
on  account  of  the  money  so  paid. 

Stats.  18G7-8,  459,  sec.  1. 

§  577.  Savings  and  loan  corporations  may  pre- 
scribe by  their  by-laws  the  time  and  conditions  on 
which  repayment  is  to  be  made  to  depositors;  but 
whenever  there  is  any  call  by  depositors  for  re- 
payment of  a  greater  amount  than  the  corporation 
may  have  disposable  for  that  purpose,  the  direct- 
ors or  officers  thereof  must  not  malve  any  new 
loans  or  investments  of  the  funds  of  the  deposi- 
tors, or  of  the  earnings  thereof,  until  such  excess 
of  call  has  ceased.  The  directors  of  any  such  cor- 
poration having  no  capital  stock  must  retain,  on 


181  SAVINGS  AND  LOAN   CORPORATIONS.    §§  578,  579 

each  dividend  day,  at  least  five  per  cent,  of  tlie 
net  profits  of  the  corporation,  to  constitute  a  re- 
serve fund,  which  must  be  invested  in  the  same 
manner  as  other  funds  of  the  corporation,  and 
must  be  used  toward  paying  any  losses  which  the 
corporation  may  sustain  in  pursuing  its  lawful 
business.  The  corporation  may  provide  by  its  by- 
laws for  the  disposal  of  any  excess  in  the  reserve 
fund  over  one  hundred  thousand  dollars,  and  the 
final  disposal,  upon  the  dissolution  of  the  corpo- 
ration, of  the  reserve  fund,  or  of  the  remainder 
thereof,  after  payment  of  losses. 
Stats.  1862,  201,  sec.  11;  1870,  523,  822. 

§  578.  No  director  or  officer  of  any  savings  and 
loan  corporation  must,  directly  or  indirectly,  for 
liimself  or  as  the  partner  or  agent  of  others,  bor- 
row any  of  the  deposits  or  other  funds  of  such 
corporation,  nor  must  he  become  an  indorser  or 
surety  for  loans  to  others,  nor  in  any  manner  be 
an  obligor  for  moneys  borrowed  of  or  loaned  .by 
such  corporation.  The  office  of  any  director  or 
officer  who  acts  in  contravention  of  the  provisions 
of  this  section  immediately  thereupon  becomes  va- 
cant. 

Overdrawing  of  his  account  by  officer,  a  misde- 
meanor: Penal  Code,  sec.  501. 

§  579.  Receiving  deposits,  issuing  certificates  of 
deposit,  checks,  and  bills  of  exchange,  and  the 
like,  in  the  transaction  of  the  business  of  savings 
and  loan  corporations,  must  not  be  construed  to  be 
the  creation  of  debts  within  the  meaning  of  the 
phrase  "create  debts,"  in  section  309. 

See  Act  of  February  21,  1872,  Relative  to  Cor- 
porations for  the  Accumulation  and  Investment  of 
Tunds  and  Savings,  Appendix,  p.  719. 

Civ.    Code.— 16. 


§§  584-583  MINING   CORPORATIONS.  182 

TITLE  XI. 

MINING   CORPORATIONS. 

§  584.  Removal  of  the  principal  office  provided  for.  (Re- 
pealed.) 

§  585.  Dirertois  to  file  certificates  of  proceedings  in  offices 
cf  county  clerks  and  secretary  of  state, 

§  586.    Transfer  rgencies. 

§  587.  'Stock  issued  at  transfer  agencies. 

§  584.  [Eepealed  April  .3,  1S7G;  Amendments 
1875-G,  73.     In  effect  immediately.] 

§  ^85.  When  the  publication  provided  for  in  the 
preceding  section  has  been  completed,  the  direct- 
ors of  the  corporation  must  file  in  the  offices  of 
the  clerks  of  the  counties  from  and  to  which  such 
change  has  been  made,  and  in  the  office  of  the 
secretary  of  state,  certified  copies  of  the  written 
co.nsent  of  the  stockholders  to  such  change,  and 
of  the  notice  of  such  change,  and  proof  of  publica- 
tion; also,  a  certificate  that  the  proposed  removal 
has  taken  place;  and  thereafter  the  principal  place 
of  business  of  the  corporation  is  at  the  place  to 
which  it  is  removed. 

Stats.  1SG3-4.  70.  sec.  1. 

Act  for  protection  of  miners:  See  post,  Appen- 
dix, pp.  802,  803. 

Act  relating  to  removal  of  officers:  See  post,  Ap- 
pendix, p.  804. 

§  586.  Any  corporation  organized  in  this  State 
for  the  purpose  of  mining  or  carrying  on  mining 
operations  in  or  without  this  State,  may  establish 
and  maintain  agencies  in  other  States  of  the 
United  States,  for  the  transfer  and  issuing  of  their 
stock;  and  a  transfer  or  issue  of  the  same  at  any 
such  transfer  agency,  in  accordance  with  tlie  pro- 
visions of  its  by-laws,   is  valid  and   binding  as 


1S3  BEXEVOLEXT    C0RP0RATI0X3.        §§  587-593 

fully  jiud  effectually  for  all  purposes  as  if  made 
upou  the  books  cf  such  corporation  at  its  principal 
office  \viihin  this  State.  The  agencies  must  be 
governed  by  the  by-laws  and  the  directors  of  the 
corporation. 
Stats.  181j3-4,  7G,  sec.  2. 

§  587.  All  stock  of  any  such  corporation,  issued 
at  a  transfer  agency,  must  be  signed  by  the  presi- 
dent and  secretary  of  the  corporation,  and  coun- 
tersigned at  the  time  cf  its  issue  by  the  agent 
having  charge  cf  the  transfer  agency.  No  stock 
must  be  issued  at  a  transfer  agency  unless  the 
ceriiticate  of  stock,  in  lieu  of  which  the  same  is 
issued,  is  at  the  time  surrendered  for  cancella- 
tion. 

Stats.  1863-4,  429.  sees.  1,  3. 


TITLE  XII. 

BEXEVOLEXT  CORPORATIONS. 

§  593.  CorrorPtions    for    purposes    other    than    profit,    ho-w 

formed. 

§  .'91.  jAddifoual  farts,  articles  of  incorporation  to  set  out. 

§  "9^.  Amount  of  real  estate  limit'-d. 

§  5£fi.  L?nd  held  by  Masons.   Odd   Fallows,   and  Poneers. 

§  5f7.  Directors  to  make  verified  report  annually. 

§  .568.  Sale  and  morttaite  of  real   estate. 

§  599.  What  may  bo  provided  for  in  their  by-laws,   &c. 

§  600.  Members  Edmitt-^d  after  inr orporaticn. 

§  eoi.  No  member  to  transfer  membership,  &c. 

§  602.  Rrligicus  societies  may  become  sole  corporations. 

§  "03.  Chiiifhes,  how  incorporattd. 

§  G04.  Same. 

§  593.  Any  number  of  persons  associated  to- 
gether for  any  purpose,  where  pecuniary  profit  is 
not  their  object,  and  for  which  individuals  may 
lawfully  associate  themselves,  may,  in  accordance 
with  the  rules,  regulations,  or  discipline  of  such 
association,  elect  directors,  the  number  thereof  to 
be  not  less  than  three  nor  more  than  eleven,  and 


§§  594,  595         BENEVOLENT    CORPORATIONS.  184 

may  iucorporate  themselves  as  provided  in  this 
part.  [Amendment  approved  April  6,  1880; 
Amendments,  1880,  p.  0.     In  effect  April  5,  1880.] 

Act  relatinfi^  to  mutual  benefit  and  relief  associa- 
tions: See  post,  Appendix,  p.  723. 

Benevolent  associations  not  insurance  compa- 
nies: Sec.  451,  ante. 

§  594.  In  addition  totherequirements  of  section 
290,  the  articles  of  incorporation  of  any  associa- 
tion mentioned  in  the  preceding  section  must  set 
forth  the  holding  of  the  election  for  directors,  the 
time  and  place  where  the  same  was  held,  that  a 
majority  of  the  members  of  such  association  were 
present  and  voted  at  such  election,  and  the  result 
thereof;  which  facts  must  be  verified  by  the  offi- 
cers conducting  the  election. 

Stats.  1850,  347,  sec.  170;  18G2,  125. 

§  595.  All  such  corporations  may  hold  all  the 
property  of  the  association  owned  prior  to  incor- 
poration or  acquired  thorenfter  in  any  manner,  and 
transact  all  business  relative  tliereto;  but  no  such 
corporation  must  own  or  hold  more  real  estate 
than  may  be  necessary  for  the  business  and  ob- 
jects of  the  association  and  providing  burial 
grounds  for  its  deceased  members,  not  to  exceed 
six  whole  lots  in  any  city  or  town,  nor  more  than 
twenty  acres  in  the  country,  the  annual  increase, 
income,  or  profit  whereof  must  not  exceed  fifty 
thousand  dollars;  provided,  that  any  such  corpora- 
tion now,  or  hereafter  having,  and  having  had 
continuously  for  the  next  preceding  three  years, 
the  care,  custody,  control,  and  maintenance  each 
year,  upon  an  annual  average  of  not  loss  tlmn  one 
hundred  orphans,  half  orphnns,  and  indigent 
minor  children  at  any  one  orphan  asylum,  shall 
be  entitled  and  allowed  to  own  and  possess  any 
number  of  acres  not  exceeding  one  hundred  and 
sixty  acres  of  land  in  the  country,  outside  of  any 


1S5  BENEVOLENT    CORPOPwATIONS.        §§  c95-598 

incorporated  city  or  tovru,  and  the  annual  income 
or  profit  of  \^'liicb  dees  not  exceed  fifty  thousand 
dollars;  and  provided  further,  such  orphan  asylum 
shall  be  situated  on  such  lands;  and  provided  fur- 
ther, that  the  limitations  herein  provided  for  shall 
not  apply  to  corporations  formed,  or  to  be  formed, 
under  section  six  hundred  and  two  of  the  Civil 
Code,  when  the  land  is  held  or  used  for  churches, 
hospitals,  schools,  colleges,  orphan  asylums,  par- 
sonages, or  cemetery  purposes.  [Amendment  ap- 
proved February  2(J.  1881;  Stats.  1881,  9.  In  effect 
February  26,  1881.] 

§  596.  In  addition  to  that  provided  for  in  the 
preceding:  section,  friendly  societies  and  Pioneer 
associations  may  hold  such  real  estate  as  may 
be  necessary  to  carry  out  their  charitable  pur- 
poses, or  for  the  establishment  and  endowment  of 
institutions  of  learning  connected  therewith.  In 
case  any  such  corporation  is  the  owner,  by  dona- 
tion or  purchase,  of  more  lands  than  herein  or  in 
the  preceding  section  provided  for,  such  surplus 
must  be  sold  and  conveyed  by  the  corporation 
within  five  years  after  its  acquisition.  Such  sale 
may  be  made  without  the  order  or  decree  of  the 
Superior  Court,  as  hereinafter  provided.  [Amend- 
ment approved  April  0,  1880;  Amendments  1880, 
G.     In  effect  immediately.] 

§  597.  The  directors  must  annually  make  a  full 
report  of  all  properly,  real  and  personal,  held  in 
trust  for  tlieir  corporation  by  them,  and  of  the  con- 
dition thereof,  to  the  members  of  the  associa- 
tion for  which  they  are  acting. 

Stats.  1850,  374,  sec.  183. 

§  598.  Religious  and  benevolent  corporations 
may  mortgage  or  bond  property.  Corporations  of 
the  character  mentioned  in  section  five  nundred 
and   ninety-three  may  mortgage  or  sell  the  real 


§  599  BENEVOLENT    CORPORATIONS.  186 

property  liekl  by  tliem,  aud  may  secure  the  pay- 
ment of  iudebtediiej^s  by  deed  of  trust  or  mort- 
gage upon  their  real  property,  upon  obtaining  an 
order  for  that  purpose  from  the  superior  court 
held  in  the  county  in  wliich  the  property  is  sit- 
uated. The  corporntions  above  mentioned  may 
also  issue  bonds,  payable  at  any  time  within  twen- 
ty years,  as  evidence  of  the  indebtedness  secured 
by  mortgage  or  deed  of  trust.  Before  mailing  the 
order,  proof  must  be  made  to  the  satisfaction  of 
the  court,  that  notice  of  the  application  for  leave 
to  sell  or  mortgage  or  execute  a  deed  of  trust  has 
been  given  by  publication  in  such  manner  and  for 
such  time  as  the  court  or  the  judge  has  directed, 
and  tliat  it  is  to  the  interest  of  the  corporation 
that  leave  should  be  granted  as  prayed  for.  The 
application  must  be  mnde  by  petition,  and  any 
member  of  the  corporation  may  oppose  the  grant- 
ing of  the  order  by  affidavit  or  otherwise.  But 
nothing  herein  contained  shall  prohibit  or  prevent 
the  trustees  or  directors  of  such  corporation,  un- 
der such  rules  and  regidations  as  tliey  may  adopt, 
from  disposing  of  burinl  plots  situated  in  grounds 
of  such  corporation  dedicnted  for  burial  pm'poses, 
without  making  such  application  to  or  obtaining 
an  order  from  court.  [Amendment  appi-oved 
March  20,  1891;  Stats.  1891,  p.  179.  In  effect  im- 
mediately.] 

§  599.  Corporations  organized  for  purposes 
other  than  for  profit  may,  in  their  by-laws,  or- 
dinances, constitutions,  or  articles  of  incorpora- 
tion, in  nddition  to  the  provisions  in  Title  I.  of  this 
Part,  provide  for: 

1.  The  qualificntion  of  members,  mode  of  elec- 
tion, and  terms  of  admission  to  membership. 

2.  The  fees  of  admission  and  dues  to  be  paid 
to  their  trensiu-y  by  members. 

3.  The  number  of  members  that  shall  constitute 
a  quorum  at  any  meeting  of  the  corporation,  and 


187  BENEVOLENT    CORPORATIONS.         §§  600-602 

that  election  of  officers  of  the  corporation  by  a 
meeting  so  constituted  sliall  be  as  valid  as  if  there 
had  been  a  majority  of  the  members  present 
thereat  and  voting. 

4.  The  expulsion  and  suspension  of  members 
for  misconduct  or  nonpayment  of  dues;  also,  for 
restoration  to  membership. 

5.  Contrncting,  securing,  paying,  and  limiting 
the  amount  of  their  indebtedness. 

6.  Other  regulations,  not  repugnant  to  the  Con- 
stitution cr  laws  of  the  State  and  consonant  with 
the  obiects  of  the  corporation.  [Approved  March 
14,  1885;  Stats.  1885,  130.] 

Stats.  18(J3,  624,  sees,  8,  9. 

By-laws  may  provide  for  what:  See,  generally, 
sec.  303,  ante. 

§  600.  Members  admitted  after  incorporation 
have  all  the  rights  and  privileges,  and  are  subject 
to  the  same  responsil)ilities,  as  members  of  the 
association  rrior  thereto. 

Stats.  1863.  624.  sec.  7. 

§  601.  No  member,  or  his  legal  representative, 
must  dispose  of  or  transfer  any  right  or  privilege 
conferred  on  him  by  reason  of  his  membership  of 
such  corporation,  or  be  deprived  thereof,  except 
as  herein  r»rovided. 

See  acts  of  March  28,  1874,  Eelative  to  Mutual 
Beneficial  and  Relief  .Associations,  Appendix,  p. 
72:^,:  and  January  8.1872,  Ilelative  to  Incorporation 
of  ColleL'Ps  by  Benevolent  and  Religious  ijocieties, 
Stats.  ]  871-2,  p.  10. 

§  602.  Whenever  the  rules,  regulations,  or  dis- 
cipline of  any  religious  denomination,  society,  or 
church  so  require,  for  the  administration  of  the 
tempornlities  thereof,  and  the  manncrement  of  the 
estate  and  property  thereof,  it  shall  be  lawful  for 
the  bishop,  chief  priest,  or  presiding  elder  of  such 


§  602  BENEVOLENT    CORPORATIONS.  18S 

religious  denomination,  society,  or  church  to  be- 
come t\  sole  corporation,  in  the  manner  pre- 
scribed in  this  title,  as  nearly  as  may  be.  and  with 
all  the  powers  and  duties,  and  for  the  uses  and 
purposes  in  this  title  provided  tor  religious  incor- 
porations, and  subject  to  all  the  conditions,  limi- 
tations, and  provisions  in  said  title  prescribed. 
Every  corporation  sole  shall,  however,  for  the 
purposes  of  the  trust,  have  power  to  contract  in 
the  same  manner  and  to  the  same  extent  as  a 
natural  person,  and  may  sue  and  be  sued,  and 
may  defend,  in  all  courts  and  places,  in  all  mat- 
ters and  proceedings  whatever,  and  shall  have  au- 
thority to  borrow  money,  and  give  promissory 
notes  therefor,  and  to  secure  the  payment  thereof 
by  mortgage  or  other  lien  upon  property,  real  or 
personal;  to  buy,  sell,  lease,  mortgage,  and  in 
every  way  deal  in  real  and  personal  property  in 
the  same  manner  that  a  natural  person  may,  and 
without  the  order  of  any  court;  to  receive  be- 
quests and  devises  for  its  own  use  or  upon  trusts 
to  the  same  extent  as  natural  persons  may;  and 
to  appoint  attorneys  in  fact.  The  articles  of  in- 
corporation to  be  tiled  shall  set  forth  the  facts 
authorizing  such  incorporation,  and  declare  the 
manner  in  which  any  vacancy  occurring  in  the 
incumbency  of  such  bishop,  chief  priest,  or  pre- 
siding elder  is  required  bj'  the  rules,  regulations, 
or  discipline  of  such  denomination,  society,  or 
church  to  be  filled,  which  statement  shall  be  veri- 
fied by  affidavit,  and  for  proof  of  the  appointment 
or  election  of  such  bishop,  chief  priest,  or  presid- 
ing elder,  or  of  any  succeeding  incumbent  of 
such  corporation,  it  shall  be  sufficient  to  record 
with  the  clerk  of  the  county  in  which  such  bishop, 
chief  priest,  or  presiding  elder  resides,  the  origi- 
nal or  a  copy  of  his  commission,  or  certificate  of 
letters  of  election  or  appointment,  duly  attested; 
provided,  all  property  held  by  such  bishop,  chief 


IS9  BEXEVOLEXT    CORPORATIOXS.  §  602 

priest,  or  presiding  elder  shall  be  in  trust  for  the 
ase.  purpose,  and  behoof  of  his  religious  denomi- 
nation, society,  or  church.  The  limitation  in  sec> 
lion  five  hundred  and  ninety-five  shall  not  apply 
to  corporations  formed  under  this  section,  when 
the  land  is  held  or  used  for  churches,  hospitals, 
schools,  colleges,  orphan  asylums,  parsonages,  or 
cemetery  purposes.  Any  judge  of  the  Superior 
Court  in  the  county  in  which  any  corporation  is 
formed  under  this  chapter  shall  at  all  times  have 
access  to  the  books  of  such  incorporation.  Any 
corporation  sole  heretofore  organized  and  exist- 
ing under  the  laws  of  this  State  may  elect  to  con- 
tinue its  existence  under  this  title  by  filing  a  cer- 
tificate to  that  effect,  under  its  corporate  seal  and 
the  hand  of  its  incumbent,  or  amended  articles  of 
incoiiDoration,  in  the  form  required  by  this  title, 
and  as  prescribed  by  section  two  hundred  and 
eighty-seven  of  this  Code;  and  from  and  after  the 
filing  of  such  certificate  or  amended  articles, 
such  corporation  shall  be  entitled  to  the  privileges 
and  subject  to  the  duties,  liabilities,  and  provis- 
ions in  this  title  expressed.  [Approved  March  11, 
1897;  Stats.  1807,  i)8.] 

§  G02.  Note— This  section  was  also  amended  in 
1880;  Amendments  1880,  p.  6. 

The  original  of  the  foregoing  section  602  was 
a  new  section  added  to  the  Code  by  act  of  March 
30,  1878;  Amendments  1877-8,  84;  took  effect  im- 
mediately. That  act  contains  the  following  addi- 
tional section: 

Continuance  of  existence.  Sec.  2.  Any 
corporation  sole  heretofore  organized  and  ex- 
isting under  the  laws  of  this  State  may 
elect  to  continue  its  existence  under  this  act  by 
filing  a  certificate  to  that  effect,  under  its  cor- 
porate seal  and  the  hand  of  its  incumbent  or 
amended  articles  of  incorporation,  in  the  form  re- 


§603  BENEVOLENT    CORPORATIONS.  190 

quired  by  the  preceding:  section,  as  prescribed  by 
section  two  liuudred  and  eighty-seven  (287)  of  tlie 
Civil  Code;  and  from  and  after  tbe  filing  of  siicli 
certificate  or  amended  articles  sncli  corporation 
shall  be  entitled  to  the  privileges  and  subject  to 
the  duties,  liabilities,  and  provisions  of  this  act 
expressed. 

§  603.  Whenever  the  regulations,  rules,  or  dis- 
cipline of  any  church  or  religious  society  require, 
for  the  administration  of  the  temporalities  there- 
of, or  for  the  management  of  the  property  or  es- 
tate thereof,  any  diocese,  synod,  or  district  organi- 
zation of  such  church  or  religious  society  may 
elect  directors  and  become  an  incorporation  in  the 
manner  prescribed  in  this  title,  and  with  all  the 
I)Owers  and  duties,  and  for  the  uses  and  purposes 
in  this  title  provided  for  benevolent  or  religious 
Incorporations,  and  subject  to  all  the  conditions, 
limitations,  and  provisirns  in  said  title  prescribed, 
except  as  otherwise  provided  in  this  section;  pro- 
vided, Ihat  directors  of  such  incorporation  may 
be  elected,  and  that  the  by-laws  for  its  govern- 
ment may  be  made  and  amended  by  the  conven- 
tion, synod,  or  other  representative  body  of  such 
church  or  reli?rious  society,  in  and  for  such  district, 
in  accordance  with  the  constitution,  by-lnws.  dis- 
cipline, or  resrulalion  thereof,  at  any  regular  meet- 
in??,  or  special  meetino-  called  for  that  purpose; 
and,  provided,  the  certificate  of  incorporation  and 
of  the  election  of  directors  to  be  filed  shall  be  suf- 
ficiently sirrned  and  attested  by  the  signature  of 
the  T^residinsT  officer  and  secretary  of  the  repre- 
sentative convention,  synod,  or  other  such  body, 
in  which  suoh  election  is  held:  and.  provided,  all 
property  held  by  such  incorporation  shall  be  in 
trust  for  the  use,  benefit,  and  purpose  of  the 
church  or  religious  society  by  and  for  which  such 
incorporation  was  formed,  and  in  and  of  which 
such  diocese,  synod,  or  other  district  is  an  organ- 


191  BEXEVOLEXT    CORPORATIOXS.  §  G04 

izod  or  coustitueut  part;  and  that  the  limitation  in 
section  tive  liiindred  and  niuety-tive  shall  not  ap- 
ply to  corporations  formed  under  this  section, 
wiien  the  land  is  held  or  used  for  churches,  hos- 
pitals, sciiools,  colleges,  asylums,  parsonages,  or 
cemetery  purposes.  L>>'ew  section  approved 
March  12,  1885;  Stats.  1885,  109.] 

i5  e04.  Any  church  or  other  religious  associa- 
tion in  this  State,  composed  of  two  or  more  con- 
stituent parishes,  missions,  congregations,  or  so- 
cieties, having  a  common  convention,  synod,  coun- 
cil, or  other  representative  legislative  bcd3%  may 
be  incorporated  by  such  representative  body  under 
this  part  and  subject  to  the  provisions  of  this  ti- 
tle, except  as  otherwise  provided  in  this  section. 
The  representative  body  of  such  religious  associa- 
tion electing  to  incorporate  the  same  shall  de- 
termine the  name  of  the  proposed  corporation,  the 
purpose  for  which  it  is  formed,  the  place  where  its, 
principal  business  is  to  be  transacted,  the  term  for 
which  it  is  to  exist,  and  the  number  of  its  di- 
rectors, and  shall  elect  its  directors  for  the  first 
year.  The  articles  of  incorporation  need  only  be 
signed  and  acknowledged  by  the  presiding  officer 
and  secretary  of  such  representative  body,  and  in 
addition  to  the  reciuirements  of  section  two  hun- 
dred and  ninety,  shall  set  forth  the  proceedings 
herein  prescribed  for  said  representative  body, 
and  that  the  same  were  duly  had  in  accordance 
with  the  constitution,  canon,  rules,  or  regulations 
governing  the  other  proceedings  of  said  represent- 
ative body,  and  the  time  and  place  thereof.  The 
directors  of  such  corporation  shall  be  elected  an- 
nually by  the  representative  body  of  the  associa- 
tion. The  representative  body  providing  for  such 
incorporation  shall  frame  by-laAvs  for  the  corpo- 
ration, and  such  by-laws  may  be  repealed  or 
amended,  or  new  by-laws  may  be  adopted  by  any 
subsequent  representative     body   In     accordance 


§  608  CEMETERY   CORPORATIONS.  192 

with  the  constitution,  canons,  rules,  or  regulations 
governing  the  otlier  proceedings  of  such  represent- 
ative body.  Such  corporation  may  hold  and  ad- 
minister not  only  the  common  property,  funds, 
and  money  of  such  association,  but  also  the  prop- 
erty, funds,  and  money  of  any  constituent  parish, 
mission,  congregation,  or  society.  The  limitation 
in  section  five  hundred  and  ninety-five  shall  not 
apply  to  cor])orations  formed  under  this  section 
when  the  land  is  held  or  used  for  churches,  hospi- 
tals, schools,  colleges,  asylums,  parsonages,  or 
cemetery  purposes.  [In  effect  ^March  11,  1887. 
Amendment  approved  March  11,  1887;  Stats.  1887, 
p.  104.     In  effect  immediately.] 


TITLE  XIII. 

CEMETERY  CORPORATIONS. 

§  608.    How  much  land  may  be  held,  and  how  disposed  of. 
§  609.    Who  are  members  eligible  to  vote  and  hold  oflace. 
§  610.     May  hold  personal  property,  to  what  amount.     How 

disposed  of. 
§  611.    May   issue  bonds   to  pay  for   grounds.     Proceeds   of 

sales:,  how  disposed  of. 
§  612.    May  take  and  hold  property  or  use  income  thereof, 

how. 
§  613.    Interments   in   lot,    and   effect   thereof.     Transfer   of 

rights  only  made,  how. 
§  614.    Lot  owners  previous  to  purchase  to  be  members  of 

the  corporation. 
§  615.    May  sell   lands,   how. 
§  616.    May  hold  property.    Income,   how  applied. 

§  608.  Corporations  organized  to  establish  and 
maintain  cemeteries  may  take,  by  purchase,  dona- 
tion, or  devise,  laud,  not  exceeding  three  hundred 
and  twenty  acres  in  extent,  in  the  county  wherein 
their  articles  of  incorporation  are  filed,  or  in  an 
adjoining  county,  and  may  employ  any  surplus 
moneys  in  the  treasury  thereof  for  such  purpose; 
such  lands  to  be  held  and  occupied  exclusively 
as  a  cemetery  for  the  burial  of  the  dead.     The 


193  CEMETERY    CORPORATIONS.  §§  609,  610 

lands  must  be  surveyed  and  subdivided  into  lots 
or  plats,  avenues,  and  walks,  under  order  of  the 
directors,  and  a  map  thereof  filed  in  the  office  of 
the  recorder  of  the  county  wherein  the  lands  are 
situated.  Thereafter,  upon  such  terms  and  sub- 
ject to  such  conditions  and  restrictions,  to  be  in- 
serted in  the  conveyances,  as  the  by-laws  or  direct- 
ors may  prescribe,  the  directors  may  sell  and  con- 
vey the  lots  or  plats  to  purchasers.  [Amendment 
apiproved  March  20,  1S91;  Stats.  1891,  p.  180.  In 
effect  immediately.] 

See  Stats.    1859,  281,  for  the  origin  of  this  title. 

Manner  of  execution  of  deeds  by:  See  post,  Ap- 
pendix, p.  763. 

§  609.  Every  person  of  full  age  who  is  proprie- 
tor of  a  lot  or  plat  in  the  cemetery  of  the  corpora- 
tion, containing  not  less  than  two  hundred  square 
feet  of  land,  or,  if  there  be  more  than  one  pro- 
prietor of  any  such  lot,  then  such  of  the  pro- 
prietors as  the  majority  of  joint  proprietors  desig- 
nate, may,  in  person  or  by  proxy,  cast  one  vote 
at  all  elections  had  by  the  corporation  for  di- 
rectors or  any  other  purpose,  and  is  eligible  to  any 
office  of  the  corporation.  At  each  annual  meeting 
or  election,  the  directors  must  malie  a  report  to 
the  proprietors  of  all  their  doings,  and  of  the 
management  and  condition  of  the  property  and 
concerns  of  the  corporation. 

§  610.  Such  corporations  may  hold  personal 
property  to  an  amount  not  exceeding  five  thou- 
sand dollars,  in  addition  to  the  surplus  remaining 
from  the  sales  of  lots  or  plats  after  the  payments 
required  in  the  succeeding  section.  Such  surplus 
must  be  disposed  of  in  the  improvement,  embel- 
lishment, and  preservation  of  the  cemetery,  and 
paying  incidental  expenses  of  the  corporation,  and 
in  no  other  manner. 

Stats.  1864,  12,  sec.  1. 

Civ.    Code.— 17. 


§§  611-613  CEMETERY    CORPORATIONS.  194 

§  611.  Such  corporations  may  issue  their  bonds, 
bearing  interest  not  exceeding  twelve  per  cent, 
per  annum,  for  the  purchase  of  lands  for  their 
cemeteries,  payable  out  of  the  proceeds  of  the  cem- 
etery, and  not  otherwise.  Sixty  per  cent,  of  the 
proceeds  of  sales  of  lots,  plats,  and  graves  must 
be  applied  at  least  every  three  months  to  the  pay- 
ment of  the  bonds  and  interest.  Such  corporations 
may  also  agree  with  the  person  or  persons  from 
whom  cemetery  lands  shall  be  purchased,  to  pay 
for  such  lands,  as  the  purchase  price  thereof,  any 
specified  sliare  or  portion,  not  exceeding  one-half, 
of  the  proceeds  of  all  sales  of  lots  or  plats  made 
from  such  lands;  such  payments  to  be  made  at 
such  intervals  as  may  be  agreed  upon.  In  all  cases 
where  cemetery  lands  shall  be  purchased  and 
agreed  to  be  paid  for  in  the  manner  last  provided, 
^hf^  prices  for  lots  or  plats  specified  in  the  by-laws, 
rules,  or  regulations  first  adopted  by  sucli  asso- 
ciation, or  prescribed  in  the  agreement  betAveen 
the  cemetery  and  the  person  or  persons  from 
whom  the  cemetery  lands  were  purchased,  shall 
not  be  changed  without  the  written  consent  of  a 
majority  in  interest  of  the  persons  from  whom 
such  lands  were  purchased,  their  heirs,  represent- 
atives, and  assigns.  [Amendment  approved  April 
10.  18S0:  Amendments  ISSO,  12.  In  effect  April 
10,  1880.] 

§  612.  Cemetery  corporations  may  take  and 
hold  any  property  bequeathed  or  given  them  on 
trust,  or  the  lots,  plats,  or  graves  thereon,  for  the 
specific  purpose  of  embellishing  or  improving  the 
grounds,  avenues,  or  superstructures  of  their  cem- 
eteries, to  use  the  income  thereof,  for  the  erection, 
preservation,  or  repair  of  monuments  therein,  or 
for  any  other  purpose  or  design  consistent  with 
the  objects  of  the  corporation. 

§  613.    Whenever  an  interment  is  made  in  any 


195  CEMETERY  CORPORATIONS.  §§  614,  615 

lot  or  piat  transferred  to  individual  owners  by 
tlie  corporation,  the  same  thereby  becomes  fore%-er 
inalienable,  and  descends  in  regular  line  of  succes- 
sion to  the  heirs  at  law  of  the  owner.  When  there 
are  several  owners  of  interests  in  such  lot  or  plat, 
one  or  more  may  acquire  by  purchase  the  interest 
of  others  interested  in  the  fee  simple  title  thereof, 
but  no  one  not  an  owner  acquires  interest  or  right 
of  burial  therein  by  purchase;  nor  must  any  one 
be  buried  in  any  such  lot  or  plat  not  at  the  time 
owning  an  interest  therein,  or  Avho  is  not  a  rela- 
tive of  such  owner,  or  of  his  wife,  except  by 
consent  of  all  jointly  interested;  provided,  how- 
ever, that  when  all  the  bodies  buried  in  any  such 
lot  shall  have  been  removed  therefrom,  with  the 
consent  of  the  owners  of  such  lot,  it  shall  be  law- 
ful for  the  then  owners  of  such  lot  to  sell  and 
transfer  the  same  by  deed;  and  any  such  sale  and 
transfer  heretofore  made  is  hereby  declared  to  be 
valid  and  effectual  to  transfer  the  title  to  the  pur- 
chaser, any  law  to  the  contrary  thereof  notwith- 
standing. [Amendment  approved  February  10, 
18.S5;  Amendments  1SS5,  1.  In  effect  February  10, 
18S5.] 

§  614.  When  grounds  purchased  or  otherwise 
acquired  for  cemetery  purpcses  have  been  pre- 
viously used  as  a  burial  ground,  those  who  are  lot 
owners  at  the  time  of  the  purchase  continue  to 
own  the  same,  and  are  menibers  of  the  corpora- 
tion, with  ail  the  privileges  a  purchase  of  a  lot 
from  the  corporation  confers. 

§  615.  Cemetery  corporations  may  sell  lands 
held  by  them  upon  obtaining  an  order  for  that  pur- 
pose from  the  Superior  Court  of  the  county  where 
the  lands  are  situated.  Before  malving  the  order, 
proof  must  be  made  to  the  satisfaction  of  the  court 
that  notice  of  the  application  for  leave  to  sell  has 
been  given  by  publication  in  such  manner  and  for 


§  616  CEMETERY  CORPORATIONS.  196 

such  time  as  the  court  has  directed,  and  that  the 
lands  are  not  required  for  and  are  not  in  use  for 
burial  purposes,  and  that  it  is  for  the  interest 
of  the  corporation  that  such  lands  be  sold.  The 
application  must  be  made  by  petition,  and  any 
member  of  the  corporation  may  oppose  the  grant- 
ing of  the  order  by  affidavit  or  otlierwise.  [New 
section  approved  March  4,  1889;  Stats.  1889,  p.  61. 
In  effect  immediately.] 

§  616.  Any  corporation  organized  to  establish 
and  maintain,  or  to  improve,  a  cemetery,  may  take 
and  hold  any  property  bequeathed,  granted,  or 
given  to  it  upon  trust,  to  apply  the  proceeds  or 
income  thereof  to  any  or  all  of  the  following  pur- 
poses: To  the  improvement  or  embellishment  of 
such  cemetery,  or  of  any  lot  therein;  or  to  the 
erection,  renewal,  repair,  or  preservation  of  any 
monument,  fence,  or  other  structure  in  such  cem- 
etery; or  to  the  planting  or  cultivation  of  trees, 
shrubs,  or  plants  in  or  around  such  cemetery,  or 
any  lot  tlierein;  or  to  the  improving,  ornamenting, 
or  embellishing  of  such  cemetery,  or  any  lot  there- 
in, in  any  otiier  mode  or  manner  not  inconsistent 
with  the  purposes  for  which  said  cemetery  was  es- 
tablished or  is  being  maintained.  Such  property, 
and  tlie  proceeds  or  income  thereof,  shall  be  in- 
vested and  re-invested  by  such  corporation,  in  the 
bonds  of  the  Ignited  States,  or  of  this  State,  or  of 
any  municipality  of  this  State,  or  in  mortgages 
of  real  estate,  if  such  investment  be  not  repug- 
nant to  the  terms  of  the  bequest,  grant,  or  gift. 
[New  section  approved  INIarch  20,  1895;  Stats.  1895. 
p.  119.     In  effect  immediately.] 


197         AGRICULTURAL    FAIR    CORPORATIONS.  §§  620-322 

TITLE  XIY. 
AGRICULTURAL  FAIR  CORPORATIONS. 

§  620.     May  acquire  and  hold  real  estate,  how  much. 

§  bj.1.     Shall    not    contract     debts     or    liabilities    exceeding 

amount  in  tieasury. 
§  622.    Not  for  profit.     May  fix  fee,  &c.,  for  membership. 

§  620.  Agricultural  Fair  Corporations  may  pur- 
cliase,  hold,  or  lease  any  quantity  of  land,  not  ex- 
ceeding in  tlie  aggregate  one  hundred  and  sixty 
acres,  with  such  buildings  and  improvements  as 
may  be  erected  thereon,  and  may  sell,  lease,  or 
otherwise  dispose  of  the  same,  at  pleasure.  This 
real  estate  must  be  held  for  the  purpose  of  erect- 
ing buildings  and  other  improvements  thereon,  to 
promote  and  encourage  agriculture,  horticulture, 
mechanics,  manufactures,  stocli  raising,  and  gen- 
eral domestic  industry. 

See  Stats.  1850,  104,  for  the  origin  of  this  title. 

§  621.  Such  corporation  must  not  contract  any 
debts  or  liabilities  in  excess  of  the  amount  of 
money  in  the  treasury  at  the  time  of  contract,  ex- 
cept for  the  purchase  of  real  property,  for  which 
they  may  create  a  debt  not  exceeding  five  thou- 
sand dollars,  secured  by  mortgage  on  the  prop- 
erty of  the  corporation.  Tlie  directors  who  vote 
therefor  are  personally  liable  for  any  debt  con- 
tracted or  incurred  in  violation  of  this  section. 

§  622.  Agricultural  Fair  Corporations  are  not 
conducted  for  profit,  and  have  no  capital  stock  or 
income  cth'  r  than  that  derived  Ir  m  chu-ges  to  ex- 
hibitors and  fees  for  membership,  which  charges, 
together  with  the  term  of  membership  and  mode 
of  acquiring  the  same,  must  be  provided  for  in 
their  by-laws.  Such  fees  must  never  be  greater 
than  to  raise  sufficient  revenue  to  discharge  the 


§§  628,  C29  GAS    CORPORATIONS.  198 

debt  for  the  real  estate  and  tlie  improvements 
tliercoii,  and  to  defray  the  curreut  expenses  of 
fiiirs. 


TITLE  XV. 

GAS    CORPORATIONS. 

§  G28.  Corporafons  to  obtain  privilege  from  city  or  town 
Slid  use  meters  proved  by  the  inspertor. 

§  629.  Gas  to  be  supplied  on  written  application.  Dam- 
ages for  refupal. 

§  630.     "SMirn  corpnratinrs  may  refure  to  supply  gas. 

§  e*^!.     Aernt  of  corporation  may  inspect  nn^t'^rs. 

§  632.    When  persons  neglect  to  pay,  gas  may  be  shut  off. 

§  628.  No  corporation  hereafter  formed  must 
snpi)ly  any  city  or  town  witli  jjas,  or  lay  down 
mains  or  pipes  for  that  purpose  in  the  streets  or 
alloys  thereof,  without  permission  from  the  city 
or  town  authorities,  granted  in  pursuance  of  the 
provisions  of  the  Political  Code  or  of  statutes  ex- 
pressly continued  by  such  Code.  Nor  must  such 
corporation  furnish  or  use  anj'  gas-meter  which 
has  not  been  proved  and  sealed  by  the  inspector 
of  gas-meters. 

See  Stats.  1SG3,  678,  for  the  origin  of  this  title. 

§  629.  Upon  the  application  in  writing  of  the 
owner  or  occupant  of  any  dwelling  or  premises 
distant  not  more  than  one  hundred  feet  from  any 
main  of  the  corporation,  and  payment  by  the  ap- 
plicant of  all  money  due  from  him,  the  corpora- 
tion must  supply  gas  as  required  for  such  build- 
ing or  premises,  and  cannot  refuse  on  the  ground 
of  any  indebtedness  of  any  former  owner  or  oc- 
cupant thereof,  unless  the  applicant  has  under- 
taken to  pay  the  same.  If,  for  the  space  of  ten 
days  after  such  application,  the  corporation  re- 
fuses or  neglects  to  supply  the  gas  required,  it 
must  pay  to  the  applicant  the  sum  of  fifty  dollars 
as  liquidated  damages,  and  five  dollars  a  day  as 


199  GAS    CORPORATIONS.  §§  630-G32 

liquidated  damages  for  every  day  sucli  refusal  or 
neglect  continues  thereafter. 

§  630.  No  ccrpcraticu  is  required  to  lay  ser- 
vice pipe  where  serious  obstacles  exist  to  laying 
it,  unless  the  applicant,  if  required,  deposits  in  ad- 
vance, with  the  corporation,  a  sum  of  money  sufli- 
cient  to  pay  the  cost  of  laying  such  service  pipe, 
or  his  proportion  thereof. 

§  631.  Any  agent  of  a  gas  corporation  exhibit- 
ing written  authority,  signed  by  the  president  or 
secretary  thereof  for  stich  purpose,  may  enter  any 
building  or  premises  lighted  with  gas  supplied 
by  such  corporation,  to  inspect  the  gas-meters 
therein,  to  ascertain  the  quantity  of  gas  supplied 
or  consimied.  Every  owner  or  occupant  of  stich 
buildings  who  hinders  or  prevents  such  entry  or  in- 
spection must  pay  to  the  corporation  the  sum  of 
fifty  dollars  as  liquidated  damages. 

§  632.  All  gas  corporations  may  shut  off  the 
supply  of  gas  from  any  person  who  neglects  or  re- 
fuses to  pay  for  the  gas  supplied,  or  the  rent  of 
any  meter,  pipes,  or  fittings  provided  by  tlie  corpo- 
ration as  required  by  his  contract;  and  for  the 
purpose  of  shutting  off  the  gas  in  such  case  any 
employee  of  the  corporation  may  enter  the  btiild- 
ing  or  premises  of  such  person,  between  the  hours 
of  eight  o'clccli  in  tlie  forenoon  and  six  o'clock  in 
the  afternoon  of  any  day,  and  remove  therefrom 
any  property  of  the  corporation  used  in  supplying 
£r-"'S. 


§  633       LAND    AND    BUILDING    CORPORATIONS.  200 

TITLE  XVI. 

LAND  AND  BUILDING  CORPORATIONS. 

§  633.  Formation  and  organization. 

§  t>34.  Capi.ai  ttock. 

§  ^b.  KuLuiug  tree  shares. 

§  b36.  Matui  ity  of  stock. 

§  oa7.  Luajis. 

§  638.  Rate  of  interest. 

§  63y.  i"orteiture—Ai  rears  in  payments. 

§  6i0.  Purchase   of   real   estate. 

§  641.  Borrowing   money. 

§  642.  Piotits  and  losses. 

§  643.  Membership. 

§  644.  Annual  report. 

§  645.  foreign   corporations,   deposit  by. 

§  646.  Electing  to  continue  business. 

§  647.  Subject  to  provisions  relating  to  bank  commissioners. 

§  b48.  JJeUUition   or. 

§  6481/^. Taxation  of. 

§  633.  Corporations  may  be  formed  subject  to 
the  provisions  of  this  title,  and  with  all  the  rights, 
duties,  and  poAvers  herein  specified.  Such  corpora- 
tions shall  be  known  as  mutual  building  and  loan 
associations,  and  the  words  "mutual  building  and 
loan  association"  shall  form  part  of  the  name  of 
every  such  corporation.  The  articles  of  incorpo- 
ration, in  setting  forth  the  purposes  for  which  the 
corporation  is  formed,  shall  state,  that  it  is  formed 
to  encourage  industry,  frugality,  home  building, 
and  savings  among  the  stockholders;  the  accumu- 
lation of  savings;  the  loaning  to  its  stockholders 
of  the  funds  so  accumulated,  with  the  profits  and 
earnings;  and  the  repayment  to  each  stockholder 
of  his  savings  and  profits,  when  they  have  accu- 
mulated to  a  certain  sum,  or  at  any  time  when  he 
shall  desire  the  same,  as  provided  in  the  by-laws, 
or  when  the  corporation  shall  desire  to  repay  the 
same;  and  shall  also  state  that  it  is  formed  for  all 
the  purposes  specified  in  this  title.     [New  section 


201  LAND   AND    BUILDING    CORPORATIONS.        §  634 

added  March  31,  1891;  Stats.  1891,  p.  252.  In  ef- 
fect immediately.] 

TLe  sections  by  this  act  added  to  the  Civil  Code, 
providing  for  the  examination  by  the  banii  com- 
missioners of  this  State  of  all  building  and  loan 
associations,  apply  to  all  such  corporations,  wheth- 
er organized  and  doing  business  before  or  after 
the  passage  of  this  act:   Acts  of  1891,  p.  252,  sec.  1. 

Act  creating  board  of  commissioners  of  building 
and  loan  associations:  See  post,  Appendix,  p.  727. 

Annuity  or  endowment  insurance:  See  post,  Ap- 
pendix, p.  777. 

§  634.  The  capital  stock  of  such  corporations 
shall  be  paid  in  by  the  stockholders  in  regular, 
equal,  periodical  payments,  at  such  times  and  in 
such  amounts  as  shall  be  provided  in  the  by-laws. 
Such  periodical  payments  shall  be  called  dues; 
and  at  or  before  a  time  to  be  stated  in  the  by- 
laws, each  stockholder  shall  pay  to  the  corpora- 
tion, upon  each  share  of  stock  held  by  him,  such 
an  amount  of  dues  as  the  by-laws  shall  provide; 
and  the  payment  of  dues  shall  so  continue  on  each 
share  of  stock  issued  till  it  reaches  its  matured 
value,  or  is  withdrawn,  canceled,  or  forfeited.  The 
capital  stock  shall  consist  of  such  accumulated 
dues,  together  with  the  earnings  and  profits  of  the 
corporation,  and  shall  in  no  case  exceed  two  mil- 
lion dollars,  except  as  to  corporations  now  exist- 
ing. It  shall  be  divided  into  shares  of  matured  or 
par  value  of  one  hundred  dollars,  or  two  hundred 
dollars  each,  as  shall  be  provided  in  the  articles 
of  incorporation  and  fixed  by  the  by-laws.  Cer- 
tificates of  stock  shall  be  issued  to  each  stockhold- 
er on  the  first  payment  of  dues  by  him.  The 
shares  shall  be  issued  in  yearly,  half-yearly,  or 
quarterly  series,  except  in  corporations  now  exist- 
ing, in  such  amounts  in  each  series,  and  at  such 
times,  as  shall  be  determined  by  the  board  of  di- 
rectors.    No  share  of  a  prior  series  shall  be  is- 


§  635       LAND    AND    BUILDING    CORPORATIONS.  202 

sued  after  the  issuing  of  sliares  in  a  new  series. 
Shares  which  have  not  been  pledged  as  a  security 
for  the  repaj'ments  of  a  loan  shall  be  called  free 
shares.  Shares  that  have  been  so  pledged  shall 
be  called  pledged  shares.  All  stock  matured  ami 
surrendered  or  canceled  in  any  series  shall  be- 
come the  property  of  the  corporation,  and  may  be 
Issued  in  any  subsequent  series.  Payment  of  dues 
on  shaies  of  stock  in  each  series  shall  commence 
from  the  time  that  shares  began  to  be  issued  in 
such  series.  Any  such  corporation  shall  have 
power  by  its  by-laws  to  impose  and  collect  a  fine 
from  each  stockholder  not  exceeding  ten  per  cent 
of  the  defaulted  amount,  for  every  neglect  or  re- 
fusal to  make  his  payments  of  dues,  or  premium, 
or  interest,  when  due,  and  to  impose  and  collect 
a  like  fine  successively  on  every  regular  pay-day 
during  such  default.  Every  such  corporation  here- 
after formed  shall  also  have  power  to  charge  an 
entrance  fee  upon  each  share  of  stock  issued,  not 
exceeding  ten  cents  on  each  share,  and  may  also 
charge  a  transfer  fee  not  exceeding  ten  cents  on 
each  sliare,  all  of  which  shall  be  paid  into  the 
treasury  and  accounted  for  as  all  other  funds  of 
the  association;  provided,  that  building  and  loan 
associations  heretofore  incorporated  may  continue 
to  charge  and  dispose  of  such  entrance  and  trans- 
fer fees  as  are  prescribed  by  the  by-laws  of  such 
corporation.  Payment  of  dues  or  interest  may  be 
made  in  advance,  but  no  association  shall  allow 
interest  on  such  advance  payments  at  a  greater 
rate  than  six  per  cent  per  annum,  nor  for  a  longer 
period  than  one  year.  [New  section  added  March 
81,  ISOl;  Stats.  1891,  p.  253.  In  effect  immedi- 
ately.] 

§  635.  The  directors  may,  at  their  discretion, 
under  the  regulations  prescribed  in  their  by-laws, 
retire  the  free  shares  of  any  series  of  stock,  at 
any  time  after  four  years  from  the  date  of  their 


203  LAND    AND    BUILDING    CORPORATIONS.       §  636 

issue,  by  enforcing  the  witliclrawal  of  the  same; 
but  whenever  there  shall  remain  in  any  series,  at 
the  expiration  of  tire  years  after  the  date  of  its 
issue,  an  excess  aljove  one  hundred  free  sliares 
of  the  par  value  of  two  hundred  dollars  each,  or 
two  hundred  free  shares  of  the  par  value  of  one 
hundred  dollars  each,  then  it  shall  be  the  duty  of 
the  directors  to  retire  annually  twenty-five  per 
centum  of  such  excess  existing  at  said  expiration 
of  five  years  after  the  date  of  its  issue,  so  that 
no  more  than  one  hundred  free  shares  shall  remain 
in  such  series  at  the  expiration  of  nine  years  from 
the  date  of  its  issue;  provided,  that  no  more  than 
one  half  the  monthly  receipts  be  used  for  that  pur- 
pose; and  thereafter  the  directors  may,  in  their 
discretion,  retire  such  other  free  shares  as  they 
consider  to  the  best  interest  of  the  association  to 
retire;  provided,  that  whenever,  under  the  provi- 
sions of  this  section,  the  withdrawal  of  shares  is 
to  be  enforced,  the  shares  to  be  retired  shall  be 
determined  by  lot,  drawn  from  all  free  shares  in 
the  series,  as  shall  be  regulated  by  the  by-laws, 
and  the  holders  thereof  shall  be  paid  the  amount 
actually  paid  in,  and  the  full  amount  of  earnings 
at  the  date  of  last  apportionment  of  profits.  [New 
section  added  Maroli  31,  1801;  Stats.  1891,  p.  254. 
In  effect  immediately.] 

§  636.  When  the  stock  in  any  series  shall  have 
reached  its  matured  value,  payment  of  dues  there- 
on shall  cease,  and  all  of  the  stoclvholders  in  such 
series  who  have  borrowed  from  the  association 
shall  be  entitled  to  have  their  securities  returned 
to  them,  and  a  satisfaction  of  the  mortgages  made 
by  them  to  the  association;  and  the  holders  of 
free  shares  of  stock  in  such  series  shall  be  paid 
out  of  the  funds  of  the  association  the  matured 
value  thereof,  with  such  rate  of  interest  as  shall 
be  determined  by  the  by-laws,  from  the  time  the 
board   of  directors   shall   declare   such   shares  to 


§§  637.  638  LAND  AND  BUILDING  CORPORATIONS.        204 

have  matured  until  paid;  but  at  no  time  shall  more 
than  one-third  of  the  receipts  of  the  association  be 
applicable  to  the  payment  of  matured  shares, 
without  the  consent  of  the  board  of  directors.  The 
order  of  the  payment  of  the  matured  shares  shall 
be  determined  by  the  by-laws.  [New  section 
added  March  31,  1891;  Stats.  1891,  p.  254.  In  ef- 
fect immediately.] 

§  637.  The  moneys  in  the  hands  of  the  treas- 
urer, and  such  sums  as  may  be  borrowed  by  the 
corporation  for  the  purpose,  shall  be  loaned  out  in 
open  meeting  to  the  member  who  shall  bid  the 
highest  premium,  or  may  be  loaned  at  such  pre- 
mium as  may  be  fixed  from  time  to  time,  by  the 
board  of  directors;  and  the  premium  may  be  de- 
ducted from  the  amount  of  the  loan,  or  such  pro- 
portion may  be  deducted  as  the  by-laws  shall  pro- 
vide, and  in  that  case  the  balance  of  said  pre- 
mium shall  be  payable  in  such  installments  as  the 
by-laws  shall  determine;  provided,  however,  thai 
where  the  premium  is  payable  in  installments,  the 
number  of  installments  into  which  the  same  is 
divided  shall  be  uniformly  applicable  to  all  loans 
made  by  the  corporation,  and  shall  be  payable  at 
the  times  and  in  the  manner  as  provided  in  the 
by-laws;  and  provided  further,  that  in  no  case 
shall  the  amount  loaned  exceed  the  matured  value 
of  the  shares  pledged  to  secure  the  loan.  [New 
section  added  March  31,  1891;  Stats.  1891,  p.  254. 
In  effect  immediately.] 

§  638.  The  rate  of  interest  on  all  loans  may  be 
fixed  by  the  by-laws,  but,  in  case  the  by-laws  fail 
to  fix  the  rate,  then  it  shall  be  fixed,  from  time  to 
time,  by  the  board  of  directors.  For  every  loan 
made,  a  note  or  obligation,  secured  by  a  first 
mortgage  or  deed  of  trust  upon  unincumbered 
real  estate,  shall  be  given,  accompanied  by  a 
transfer  and  pledge    to  the    association    of  the 


205  LAND    AND    BUILDING    CORPORATIONS.        §  63» 

shares  borrowed  upon,  as  collateral  security  for 
the  repayment  of  the  loan;  or,  in  lieu  of  the  mort- 
gage or  deed  of  trust,  there  may  be  pledged  and 
transferred  to  the  association,  for  the  payment  of 
the  loan,  free  shares,  the  withdrawal  value  of 
which,  under  the  by-laws,  at  the  time  of  such 
borrowing,  shall  exceed  the  amount  borrowed  and 
interest  thereon  for  six  months.  At  the  discre- 
tion of  the  board  of  directors,  a  borrower  may  re- 
pay a  loan,  and  all  arrears  of  interest  and  tines 
thereon,  at  any  time  upon  the  surrender  of  the 
shares  pledged  for  the  loan.  L^ii^eudmeut  ap- 
proved Jt  ebruary  25,  1897.     Chapter  XxXiil.] 

The  original  of  this  section  was  a  new  section 
adopted  in  1691;  Stats  1891,  p.  255. 

§  639.  Whenever  any  member  shall  be  six 
months  in  arrears  in  the  payment  of  his  dues 
upon  free  shares,  the  secretary  shall  give  him 
notice  thereof,  in  writing,  and  a  statement  of  his 
arrearages,  by  mailing  the  same  to  him  at  the  last 
postotfice  address  given  by  him  to  the  association, 
and  if  he  shall  not  pay  the  same  within  two 
months  thereafter,  the  board  of  directors  may,  ai 
their  option,  declare  his  shares  forfeited;  and  at 
the  time  of  such  forfeiture,  the  withdrawal  value 
thereof  shall  be  determined  and  stated,  and  the 
defaulting  member  shall  be  entitled  to  w^ithdraw 
the  same  without  interest,  upon  such  notice  as 
shall  be  required  of  a  withdrawing  shareholder. 
Whenever  a  borrowing  member  shall  be  six 
months  in  arrears  in  the  payment  of  his  dues,  or 
interest,  or  premium,  the  whole  loan  shall  become 
due  at  the  option  of  the  board  of  directors;  and 
they  may  proceed  to  enforce  collection  upon  the 
securities  held  by  the  association.  The  with- 
drawal value,  at  the  time  of  the  commencement 
of  the  action,  of  all  shares  pledged  as  collateral 
security  for  the  loan,  shall  be  applied  to  the  pay- 
Civ.   Code.— 18. 


§§  640-642  LAND  AND  BUILDING  CORPORATIONS.        206 

ment  of  the  loan,  aud  said  shares,  from  that  time, 
shall  be  deemed  surrendered  to  the  associaiioii. 
LNew  section  added  March  31,  181)1;  Stats.  1801, 
p.  255.     In  effect  immediately.] 

In  the  same  statute  the  original  section  was  re- 
pealed, Stats.  18U1,  p.  252,  sec.  1,  with  the  follow- 
ing proviso:  Provided,  however,  that  so  far  as  the 
said  sections  relate  to  and  govern  building  and 
loan  associations  heretofore  incorporated  and  do- 
ing business  under  the  Civil  Code,  the  snid  sec- 
tions shall  continue  in  full  force  and  validity. 

This  title  is  principally  drawn  from  Stats.  18G1, 
5G7. 

§  640.  May  buy  real  estate.  Any  such  associa- 
tion mny  purchase  at  any  sale,  public  or  private, 
any  real  estate  upon  which  it  may  have  a  mort- 
gage, judgment,  lien,  or  other  encumbrance,  or  in 
which  it  mny  have  an  interest;  and  may  sell,  con- 
vey, lease,  or  mortgage  the  same,  at  pleasure,  to 
anj'  person  or  persons.  [New  section  added  March 
31,  1801;  Stats.  1891,  p.  255.  In  effect  immedi- 
ately.] 

The  original  section  was  repealed  in  the  same 
act:  Stats.  1891,  p.  252,  sec,  1;  see  proviso  to  sec. 
639. 

§  641.  Any  association  organized  in  pursuance 
of  the  provisions  of  this  act  may  borrow  money 
for  the  purpose  of  making  loans  or  paying  with- 
drawals. [New  section  added  March  31,  1891; 
Stats.  1891,  p.  255.     In  effect  immediately.] 

Tlie  original  section  was  repealed:  Stats.  1891, 
p.  252;  see  proviso  to  sec.  G39, 

§  642.  Profits  and  losses  shall  be  apportioned  at 
least  annually,  and  shall  be  apportioned  to  all 
the  shares  in  each  series  outstanding  at  the  time 
of  such  apportionment,  according  to  the  actual 
value  of  such  shares  as  distinguished  from  their 


207       LAND   AND   BUILDING   CORPORATIONS.    §§  643,  &14 

withdrawal  value.     [New  secticn  added  March  31, 
1891;  Stats.  1S91,  p.  255.   In  effect  immediately.] 

The  original  section  was  repealed  by  the  same 
act  that  added  the  above  section:  Stats.  1891,  p. 
252,  sec.  1;  see  proviso  to  sec.  039. 

§  643.  Membership.  Any  person  of  full  age 
and  sound  mind  may  become  a  member  of  tlie  as- 
sociation by  talking  one  or  more  shares  llierein, 
and  subscribing  to  the  by-laws,  and  annexing  to 
his  signature  his  postottice  address,  A  minor  may 
hold  shares  in  the  name  of  the  parent,  guardian, 
or  next  friend  as  trustee.  The  shares  of  stoclv  in 
any  such  corporation  held  by  any  person,  to  the 
vjilue  of  one  thousand  dollars,  shall  be  exempt 
from  execution.  [Xew  secticn  added  March  31. 
1891;  Stats.  1891,  p.  25G.   In  effect  immediately.] 

The  original  section  was  repealed  by  the  statute 
adding  the  above  section:  Stats.  1891,  p.  252;  see 
proviso  under  sec.  639. 

§  644.  Annual  report.  Every  association  or- 
ganized under  the  provisions  of  this  act,  and  every 
other  association  doing  a  like  business,  shall  an- 
nually make  a  full  report,  in  writing,  of  the  affairs 
and  condition  of  such  corporation,  within  thirty 
dnys  after  its  annual  meeting,  to  the  bank  com- 
missioners of  this  State.  Such  report  shall  be 
verified  by  the  oath  of  the  officers  making  the 
same,  and  a  copy  of  the  same  shall  be  delivered  to 
every  stockholder,  from  the  office  of  the  corpora- 
tion, who  may  call  for  such  report.  Every 
association  shall  make  any  further  reports 
which  the  said  commissioners  may  require, 
and  in  such  form  and  as  to  such  mat- 
ters relating  to  the  condition  and  conduct- 
ing of  the  business  of  the  association  as  such 
connnissioners  may  designnte;  and  said  bank  com- 
missioners may  at  any  time  examine  into  the  af- 
fairs of  any  and  every  of  said  associations.     Any 


§  645       LAND    AND    BUILDING    CORPORATIONS.  208 

willful  false  swearing  in  making  and  verifying 
said  reports  shall  be  deemed  perjury.  Any  such 
association  which  shall  fail  to  furnish  the  bank 
commissioners  any  such  report  required,  within 
thirty  days  after  demand,  shall  forfeit  the  sum  of 
ten  dollars  per  day  for  every  day  such  report  shall 
be  delayed  or  withheld,  which  may  be  recovered 
in  an  action  brought  by  the  attorney  general  in 
the  name  of  the  people  of  this  State,  and  all 
moneys  so  recovered  shall  be  paid  to  the  Treas- 
urer of  the  State,  who  shall  pay  the  same  into  the 
"bank  commissioners'  fund."  The  State  Bank 
Commissioners  shall  annually  publish  a  full  re- 
port of  the  condition  of  all  associations  formed 
under  the  provisions  of  this  title,  and  every  other 
association  doing  a  lil^e  business  in  this  State,  in 
the  same  manner  as  they  are  now  required  to  do  in 
reference  to  savings  banks.  [New  section  added 
March  31,  1891;  Stats.  1891,  p.  25G.  In  effect  im- 
mediately.] 

The  original  section  was  repealed  by  the  act 
adding  the  above  section:  Stats.  1891,  p.  252,  sec. 
1;  see  proviso  under  sec.  639.  See  also  Stats. 
18G7-8,  539,  sec.  1. 

§  645.  No  mutual  building  and  loan  association, 
or  company,  association,  or  corporation  organized 
under  the  laws  of  any  other  State  or  territory,  to 
carry  on  a  business  of  a  like  character  to  that 
autliorized  by  this  title, shall  be  allowed  to  do  busi- 
iness  or  to  sell  their  stock  in  this  State  without 
first  having  deposited  with  the  State  Controller  or 
Secretary  of  Stntetlie  sum  of  fifty  thousand  dollars 
in  money,  or  United  States  or  municipal  bonds  of 
this  Stnte,  or  in  mortgages  upon  real  estate  located 
within  this  State,  as  a  guaranty  fund  for  the  pro- 
tection and  indemnity  of  residents  of  the  state  of 
California  with  whom  such  companies,  associa- 
tions, or  corporations  shall  do  business:  the  fund 
so  deposited  to  be  paid  by  the  custodian  thereof 


209  LAND   AND    BUILDING    CORPORATIONS.        §  646 

to  the  residents  of  Califoruia  only,  and  not  then 
until  proof  of  claim  by  liual  judj^ment  has  been 
filed  with  the  custodian  of  said  fund  against  such 
foreign  company,  association,  or  corporation.  Any 
of  the  securities  so  deposited  may  be  withdrawn 
at  any  time  upon  others,  herein  provided  for,  of 
like  amount  being  substituted  in  lieu  thereof.  Any 
person  or  persons  who  shall  be  found  in  this  State 
as  agent,  or  in  any  other  capacity,  representing 
such  foreign  company,  association,  or  corporation 
which  has  not  complied  with  the  provisions  of 
this  section  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  shall  be  punished  by 
a  fine  of  not  exceeding  one  thousand  dollars  or  by 
im]}risonment  in  the  county  jail  not  exceeding 
twelve  months,  or  by  both  such  fine  and  imprison- 
ment. [New  secticn  added  March  31,  1891;  Stats. 
1801,  p.  2.j().  In  effect  immediately.] 

Q'he  original  section  was  repealed  by  the  statute 
adding  the  above  section:  Stats.  1891,  p.  252,  sec. 
1;  see  proviso,  note  to  sec.  G39. 

§  646.  Any  building  and  loan  association,  now 
existing  and  heretofore  incorporated,  desiring  to 
continue  its  existence  under  the  provisions  of  this 
title,  maj'  do  so  if  tlie  holders  of  a  majority  of  the 
stock,  at  their  regular  annual  meeting,  or  at  a  spe- 
cial meeting  of  the  stock liolders  called  for  that 
purpose,  sliall  so  elect.  Tlie  notice  of  the  meeting, 
wlietlier  regular  or  special,  shall  state  as  one  of 
the  objects  of  the  meeting  to  vote  on  the  question 
wiiether  the  corporation  shall  continue  its  exist- 
ence under  the  provisions  of  this  title;  and  the 
notice  of  meeting  shall  be  published  ris  required 
by  section  three  hundred  and  one;  and,  in  addi- 
tion thereto  a  similar  notice  shall  be  mailed  to 
each  stockholder  at  his  postofHce  address.  Within 
thirty  days  after  the  holders  of  a  majority  of  the 
stock  at  any  such  meeting  have  voted  to  continue 
the  existence  of  the  corporation  under  the  provis 


§§  647,  648  LAND  AND   BUILDING  CORPORATIONS.       210 

ions  of  this  title,  the  secretary  of  tlie  corporation 
shall,  under  calh,  make  and  subscribe,  as  such 
secretary,  a  certiticate,  in  ^vriiiug-,  stating  the  call- 
ing of  such  meeting,  the  fact  that  the  holders  of 
a  majority  of  the  stocli  voted  to  continue  the  ex- 
istence of  the  corpcration  under  this  title,  which 
shall  be  filed  in  the  office  of  the  count}'  clerk  in 
which  its  original  articles  of  incorporation  have 
been  tiled,  and  shall  tile  in  the  office  of  the  Secre- 
tary of  State  a  certified  copy  thereof,  according  to 
the  provisions  of  section  two  hundred  and  ninety- 
six;  and  the  Stcretary  cf  State  hhall  issue  h  s  usual 
certificate,  as  provided  in  said  section.  Thereupon, 
such  corporation  shall  be  subject  to  all  the  pro- 
visions of  this  title,  as  though  originally  incorpo- 
rated under  the  provisions  hereof,  except  that  no 
change  in  its  name  or  amount  of  capital  stock  shall 
be  made;  but  the  name  shall  be  the  same  as  con- 
tained in  the  original  articles.  [New  section  added 
March  31,  1891;  Stats.  1891,  p.  257.  In  effect  im- 
mediately.] 

§  646  was  repealed  by  act  approved  March  30, 
1874,  in  effect  July  1.  1874. 

§  647.  All  corporations  doing  the  business  of 
building  and  loan  associations  in  this  State  shall 
be  subject  to  the  provisions  of  this  title  relating  to 
the  bank  commissioners.  [New  section  added 
March  31,  1891;  Stats.  1891,  p.  257.  In  effect  im- 
mediately.] 

The  original  section  was  repealed  by  the  statute 
adding  the  above  section:  Stats.  1891,  p.  252,  sec. 
1;  see  proviso,  note  to  sec.  639. 

§  648.  The  name  "building  and  loan  associa- 
tion," as  used  in  this  act,  shall  include  all  corpo- 
rations, societies,  or  organizations  or  associations 
doing  a  savings  and  loan  or  investment  business 
on  the  building-society  plan,  viz.:  loaning  its  funds 


211  COLLEGES    AND    SEMINARIES.      §§  648V2.  649 

to  its  members  or  its  sliarebolders,  and  whether 
issuing  certitieiites  of  stcclj:  which  mature  at  a 
time  tixed  in  advance  or  not.  L^^ew  section  added 
March  31,  1891;  Stats.  1891,  p.  257.  In  effect  im- 
mediately.] 

§  648^,o.  The  provisions  of  an  act  entitled  "An 
act  imposing  a  tax  on  the  issue  of  certificates  of 
stocli  corporations,'"  approved  April  first,  eighteen 
hundred  and  seventy-eight,  shall  not  be  deemed 
and  held  to  be  applicable  to  any  certificates  is- 
sued to  and  transferred  by  the  members  or  stock- 
holders of  any  association  organized  under  or  gov- 
erned by  this  act.  [Xew  section  added  March  31, 
1891;  Stats.  1891,  p.  257.    In  effect  immediately.] 


TITLE  XYII. 
COLLEGES  AND  SEMINARIES  OF  LEARNING. 

§  619.    Articles  cf  incorporation. 
§  650.     Eoard    of    tiustees. 
§  651.    Existing  institutions. 

§  649.  Any  number  of  persons  who  may  desire 
to  establish  a  college  or  seminary  of  learning  may 
incorporate  themselves  as  provided  in  this  part, 
except  that  in  lieu  of  the  requirements  of  section 
two  hundred  and  ninety,  the  articles  of  incorpora- 
tion shall  contain: 

1.  The  name  of  the  corporation; 

2.  Tlie  puri:ose  for  which  it  is  organized; 

3.  The  place  where  the  college  or  seminary  is 
to  be  conducted; 

4.  The  number  of  its  trustees,  which  shall  not 
be  less  than  five  nor  more  than  fifteen,  and  the 
names  and  residences  of  the  trustees.  The  term 
for  which  the  trustees  named  and  their  successors 
are  to  hold  office  mny  also  be  stated.  If  it  is  de- 
sired that  the  trustees,  or  any  portion  of  them, 


§  650  COLLEGES   AND    SEMINARIES.  212 

shall    belong    to  any    organization,    society,    or 
church,  such  limitation  shall  be  stated; 

5.  The  names  of  those  who  have  subscribed 
money  or  property  to  assist  in  founding  the  sem- 
inary or  college,  together  with  the  amount  of 
money  and  description  of  property  subscribed. 
[Approved  March  14,  1885;  Stats.  1885,  133.  In 
effect  March  14,  1885.] 

§  650.  Unless  otherwise  provided  in  the  articles 
of  incorporation  the  board  of  trustees  shall,  as 
soon  as  organized,  so  classify  themselves  that  one- 
fifth  of  their  number  shall  go  out  of  office  every 
yaav,  and  thereafter  the  trustees  shall  hold  office 
for  five  years.  A  majority  of  the  trustees  sliall 
constitute  a  quorum  lor  tne  transaction  of  busi- 
ness, and  the  office  of  the  corporation  shall  be  at 
the  college  or  seminary. 

The  trustees  shall  have  power: 

1.  To  elect,  by  ballot,  annually  one  of  their 
number  as  president  of  the  board; 

2.  Upon  the  death,  removal  out  of  the  State,  or 
other  vacancy  in  the  office,  or  expiration  of  the 
term  of  any  trustee,  to  elect  another  in  his  place; 
provided,  that  where  there  are  graduates  of  the 
Institution,  such  graduates  may,  under  such  rules 
as  the  board  shall  prescribe,  nominate  persons  to 
fill  vacancies  in  the  board  of  trustees.  Such  nomi- 
nations shall  be  considered  by  the  board,  but  it 
may  reject  any  or  all  such  nominations,  and  of 
its  owm  motion  appoint  others; 

3.  To  elect  additional  trustees;  provided,  the 
whole  number  elected  shall  never  exceed  fifteen  at 
any  one  time; 

4.  To  declare  vacant  the  seat  of  any  trustee 
who  shall  absent  himself  from  eight  succeeding 
meetings  of  the  board; 

5.  To  receive  and  hold,  by  purchase,  gift,  de- 
vise, bequest,  or  grant,  real  or  personal  property 


213  COLLEGES    AND    SEMINARIES.  §  651 

for  educational  purposes  connected  with  the  cor- 
poration, or  for  the  benefit  of  the  institution; 

G.  To  sell,  mortgage,  lease,  and  otherwise  use 
and  dispose  of  the  property  of  the  corporation  in 
such  manner  as  th«'y  shall  deem  most  conducive 
to  the  prosperity  of  the  corporation; 

7.  To  direct  and  prescribe  the  course  of  study 
and  discipline  to  be  observed  in  the  college  or 
seminary; 

8.  To  appoint  a  president  of  the  college  or  sem- 
inary, who  shall  hold  his  office  during  the  pleas- 
ure of  the  trustees; 

9.  To  appoint  such  professors,  tutors,  and  other 
officers  as  they  shall  deem  necessary,  wlio  shall 
hold  their  offices  during  the  pleasure  of  the  trus- 
tees; 

10.  To  grant  such  literary  honors  as  are  usually 
granted  by  any  university,  college,  or  seminary  of 
learning  in  the  United  States,  and  in  testimony 
thereof  to  give  suitable  diplomas  under  their  seal, 
and  the  signature  of  such  officers  of  the  corpora- 
tion and  the  institution  as  they  shall  deem  expedi- 
ent; 

11.  To  fix  salaries  of  the  president,  professors, 
and  other  officers  and  employees  of  the  college  or 
seminary; 

12.  To  make  all  by-laws  and  ordinances  neces- 
sary and  proper  to  carry  into  effect  tlie  preceding 
powers  and  necessary  to  advnnce  tlie  interests  of 
the  college  or  seminary;  provided,  that  no  by-laws 
or  ordinance  shall  conflict  with  the  Constitution 
or  laws  of  tlie  United  States,  or  of  this  State. 
[Approved  March  14.  1885;  Stats.  1885,  133.  In 
effect  March  14,  1885.] 

§  651.  Any  educational  corporation,  or  body 
clniming  to  be  such,  now  existing,  may,  by  a  un- 
animous vote  of  those  of  its  trustees  present  at  p 
spprinl  meeting  cnlled  for  that  purpose,  and  of 
which  due  notice  shall  be  given  to  each  trustee, 
convey  all  its  property,  rights,  and  franchises  to 


§  652         CONSOLIDATION    OF    COLLEGES,    ETC.  214 

a  corporation  organized  under  this  title.  The  fact 
that  due  notice  of  the  meeting  was  given  to  each 
trustee  shall  be  conciusivelj'  proven  by  the  entries 
in  the  minutes  of  the  corporation  or  body  making 
the  conveyance.  Said  minutes  shall  be  certified 
to  be  correct  by  the  president  and  secretary.  [Ap- 
proved March  14,  1885;  Stats.  1885,  133.  In  ef- 
fect March  14,  1885.] 


TITLE  XVIII. 

CONSOLIDATION    OF    COLLEGES    AND    INSTITUTIONS 
OF  HIGHER  EDUCATION. 

(New  title  added  February  23,  1893,  Stats.  1893,  p,  4.    In  ef- 
fect immediately. 

§  C52.     Societies  and  organizations  authorized  to  consolidate. 
§  653.     Transfer  of  property. 

§  652.  Societies  and  organizations  authorized 
to  consolidate.  Whenever  any  benevolent,  reli- 
gious, or  fraternal  organization  or  society,  having 
a  grand  lodge,  assembly,  conference,  or  other  leg- 
islative or  representative  head  in  the  State  of  Cal- 
ifornia, having  two  or  more  colleges  or  institutions 
of  higher  education  under  its  patronage,  shall,  for 
the  purpose  of  greater  elficiency  and  simplicity  in 
the  administration  of  its  educational  interests,  de- 
sire to  consolidate  such  institutions  under  one 
management,  such  organization  or  society  shall  be 
and  is  authorized  to  consolidate  such  institutions 
under  one  management  by  complying  with  the  fol- 
lowing provisions: — 

First.  Such  grand  lodge,  assembly,  conference, 
or  other  legislative  or  representative  head  having 
authorized  a  consolidation  of  its  institutions,  a 
new  corporation  shall  be  formed.  The  board  of 
trustees  of  the  new  corporation  shall  at  first  con- 
sist of  the  persons  constituting  the  boards  of  trus- 
tees of  the  several  institutions,  respectively,  thus 
consolidated,  and  others;  provided,  the  number  of 


215  CONSOLIDATION    OF    COLLEGES,    ETC.         §  653 

trustees  shall  not  exceed  forty-five.  The  board  of 
trustees  :;Liall  be  so  classified  that  the  term  of 
ofiiee  of  oue-tliird  of  its  number  shall  expire  each 
year;  the  successors  of  such  trustees,  as  their 
terms  expire,  shall  be  elected  by  such  grand  lodge, 
asseml)ly,  conference,  or  other  legislative  or  rep- 
resentative head  at  its  annual  meeting. 

Second.  The  said  board  of  trustees  shall  repoit 
annually  to  the  grand  lodge,  assembly,  conference, 
or  other  legislative  or  representative  head  control- 
ling it,  the  condition  of  affairs  of  such  corpora- 
tion and  the  amount  and  manner  of  its  receipts 
and  expenditures. 

§  653.  The  several  boards  of  trustees  of  the  in- 
stitutions thus  consolidated  shall  be  and  are  here- 
by authorized  and  directed  to  transfer  all  property, 
real  and  personal,  held  by  them,  to  the  new  corpo- 
ration, as  herein  constituted,  together  with  all 
powers,  privileges,  and  authority  conferred  upon 
or  enjoyed  by  them  under  their  respective  charters 
or  acts  of  incorporation.  The  new  corporation  re- 
ceiving such  property  shall  assume  all  indebted- 
ness and  liabilities  of  such  institutions  as  are  thus 
consolidated,  but  shall  not  transfer  such  property 
from  one  location  to  another,  except  by  an  affirma- 
tive vote  of  not  less  than  three-fourths  of  the  said 
board  of  trustees  of  the  new  corporation,  nor  di- 
vert specific  grants,  donations,  or  bequests  from 
the  purposes  for  which  such  grants,  donations,  or 
bequests  were  made.  That  after  the  boards  of 
trustees  have  conveyed  the  property,  real  and  per- 
sonal, of  the  various  institutions  to  the  new  corpo- 
ration, as  hereinabove  provided,  and  the  same  has 
been  accepted  by  the  said  new  corporation,  then 
the  franchises  held  by  the  corporations  thus  con- 
solidating shall  cense,  and  the  said  corporations 
shall  be  thereby  dissolved.  [Amendment  ap- 
proved March  9,  1895;  Stats.  1895,  p.  3G.  In  effect 
in  sixty  days.] 


DIVISION  SECOND. 


Part  I.   Property    in    General,    §§  654- 
749. 
II.    Ileal  or   Immovable  Property, 
§§  755-940. 
III.    Personal  or  Movable  Property, 

§§  953-994. 
TV.    Acquisition      of     Property,   §§ 
1000-1422. 


Civ.    Code.— 19. 


PART  I. 


PROrERTY  IN  GENERAL. 

Title    I.    Nature  of  Property,  §§  G54-GG3. 
11.    Owuersliip,  §§  (J()U-742. 
III.    General  Detiuitious,  §§  748-749. 


TITLE  I. 

NATURE   OF   PROPERTY. 

§  6o4.  Property,  what. 

§  6.00.  In  what  property  may  exist. 

§  656.  %\  ild  animals. 

§  G57.  Real  and   personal. 

§  6n8.  R  al   property. 

§  6o9.  Land. 

§  6t.O.  Fixtures?. 

§  6J1.  I-ixtures  attached  to  mines. 

§  C62.  Appi'.rtenanres. 

§  663.  Personal  property. 

§  654.  The  ownership  of  a  tbinc:  is  the  right  of 
one  or  more  persons  to  possess  and  use  it  to  the 
exclusion  of  others.  In  this  Code,  the  thing  of 
which  there  may  be  ownership  is  called  property. 

As  to  the  meaning  of  "property"  for  the  purposes 
of  taxation,  see  Pclit.  Code,  sec.  3017. 

Real  property:    See  sec.  G58. 

Personal  property:    See  sees.  GG3,  Ons,  et  seq. 

Franchises  as  property:    See  sec.  388,  ante. 

§  655.  There  may  be  ownership  of  all  inani- 
mate things  which  are  capable  of  appropriation 
or  of  manual  delivery:  of  all  domestic  animals:  of 
all  obligations;  of  such  products  of  labor  or  skill 


§§  656-660A  NATURE    OF  PROPERTY.  220 

as  the  composition  of  an  author,  the  goodwill  of 
a  business,  trademarlis  and  signs,  and  of  rights 
created  or  granted  by  statute. 

Counterfeiting  a  trademark,  a  misdemeanor; 
Penal  Code,   sec.  350. 

Products  of  the  mind:  See  sees.  980,  post,  et 
seq. 

Trademarks:  See  sec.  991,  post. 

Goodwill:    See  sec.  993,  post. 

Title  deeds:    See  sec.  994,  post. 

Domestic  animals,  larceny  of:  See  Penal  Code, 
sec.  491. 

§  656.  Animals  wild  by  nature  are  the  subjects 
of  ownership,  while  living,  only  when  on  the  land 
of  the  person  claiming  them,  or  when  tamed,  or 
taken  and  held  in  ihe  possession,  or  disabled  and 
immediately  pursued. 

§  657.    Property  is  either: 

1.  Real  or  immovable;  or, 

2.  Personal  or  movable. 

§  658.    Real  or  immovable  property  consists  of: 

1.  Land; 

2.  That  which  is  affixed  to  land; 

3.  That  which  is  incidental  or  appurtenant  to 
land; 

4.  That  which  is  immovable  by  law.  - 
Land  defined:    See  sec.  659,  infra. 
Fixtures:   See  sec.  GGO,  infra,  et  seq. 
Appurtenances:     See  sec.  6(32. 

§  659.  Land  is  the  solid  material  of  the  earth, 
whatever  may  be  the  ingredients  of  wliich  it  is 
composed,  whether  soil,  rock,  or  other  substance. 

§  660.  A  thing  is  deemed  to  be  affixed  to  land 
when  it  is  attached  to  it  by  roots  as  in  the  case  of 
trees,  vines,  or  shrubs,  or  imbedded  in  it,  as  in  the 
case  of  walls;  or  permanently  resting  upon  it,  as 


221  OWNERSHIP.  §§  631-669 

in  the  case  of  buildings;  or  permanently  attached 
to  ^Yhat  is  thus  permanent,  as  by  means  of  ce- 
ment, plaster,  nails,  bolts,  or  screws. 

§  661.  Sluice-boxes,  flumes,  hose,  pipes,  rail- 
way tracks,  cars,  blacksmith  shops,  mills,  and  all 
other  machinery  or  tools  used  in  working  or  de- 
veloping a  mine,  are  to  be  deemed  atfixed  to  the 
mine. 

§  662.  A  thing  is  deemed  to  be  incidental  or 
appurtenant  to  land  when  it  is  by  right  used  with 
the  land  for  its  benefit;  as  in  the  case  of  a  way, 
or  watercourse,  or  of  a  passage  for  light,  air,  or 
heat  from  or  across  the  land  of  another. 

Easements  and  servitudes:  See  sees.  801  et  seq., 
post. 

§  663.  Every  kind  of  property  that  is  not  real 
is  personal. 

Personal  property:  See  ante,  sec.  14,  subd.  3; 
and  Polit.  Code,  sec.  3617. 


TITLE  II. 

OWNERSHIP. 

Chapter  I.    Owners,  §§  009-072. 

II.    Modifications    of    Ownership,  §§  678- 
720. 
III.    Rights  of  Owners.  §§  732-733. 
lY.    Termination  of  Ownership,  §§  739-742. 

CHAI'TER  I. 

OWNERS. 
§  6fi9.     Owner. 

§  fiTO.    Property  of  the  state. 
§  fill.     Who  may  own  property. 
§  C72.     Aliens  inheriting  must  claim  within  five  years, 

§  669.    All  property  has  an  owner,  whether  that 
owner  is  the  State,  and  the  property  public,  or  the 


§§  670-672  OWNERSHIP.  222 

owner  an  individual,  and  the  property  private. 
The  State  may  also  bold  property,  as  a  private 
proprietor. 

§  670.  The  State  is  tlie  owner  of  all  land  below 
tidewater,  and  below  ordinary  bish-water  mark, 
bordering  upon  tide-water  within  the  State;  of  all 
land  below  the  water  of  a  navigable  lal^e  or 
stream;  of  all  property  lawfully  appropriated  by 
it  to  its  own  use;  of  all  property  dedicated  to  the 
State,  and  all  property  of  which  there  is  no  other 
owner.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  217.  In  effect  July  1, 
1874.] 

Property  of  the  State.    Polit.  Code,  sees.  40-44. 

Public  lands:    See  Polit.  Code,  sees.  3395  et  seq. 

Escheat:  See  post,  sees.  1405,  1406. 

§  671.  Any  person,  whether  citizen  or  alien, 
may  take  bold,  and  dispose  of  property,  real  or 
personal,  within  this  State,  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4,  p. 
217.     In  effect  July  1,  1874.] 

Alien's  right  to  inherit  property:  See  sees.  1404, 
post,  et  seq. 

§  672.  If  a  nonresident  alien  takes  by  succes- 
sion, he  must  appear  and  claim  the  property  with- 
in five  years  from  the  time  of  succession,  or  be 
bari'ed.  The  property  in  such  case  is  disposed  of 
as  provided  in  Title  VIII.,  Part  III.,  Code  of  Civil 
Procedure.     [Sees.  12G9-1272.] 


223  OWNERSHIP.  §§  678,  679 

CHAPTER  11. 

MODIFICATIONS   OF   OWNERSHIP. 

Article  I.  Interests  in  Property.   ?§  678-703. 

II.  Conditions   of   Ownership.    §§  707-711. 

III.  Restiaints  upon  Alienation,  §§  715-718. 

IV.  Accumulations,  §§  722-726. 

ARTICLE  I. 

INTERESTS  IN  PROPERTY. 

§  678.  Ownership,  absolute  or  qualified. 

§  6,9.  \Nhen  absolute. 

§  680.  \v  hpu   qualified. 

§  681.  Several  ownership,  what. 

§  6s2.  Ownership  of  several  persons. 

§  683.  Joint  interest,  what. 

§  6i4.  Paitnership  interest,  what. 

§  685.  Interest  in  common,  what. 

§  3S6.  What  interests  are   in  common. 

§  687.  Community  property. 

§  688.  Interests  as  to  time. 

§  689.  Present  interest,  what. 

§  690.  Future   interest,   what. 

§  t91.  Perpetual  interest,  what. 

§  692.  Limited  interest,  what. 

§  693.  Kinds  of  luture  interests. 

§  694.  Ve.nrd  interests. 

§  6[5.  Contingent  interests. 

§  (96.  iwo  or  more  future  inter^^sts. 

§  697.  Certain  future  interests  not  to  be  void. 

§  698.  Posthumous  children. 

§  699.  Qualities  of  expectant  estates. 

§  700.  Same. 

§  701.  Interests  in  real  property. 

§  702.  Same. 

§  703.  \\  hat  future  interests  are  recognized. 

§  678.    The  ownership  of  property  is  either: 

1.  Absolute;  or, 

2.  Qualified. 

§  679.    The  ownership  of  property  is  absolute 
when  a  single  person  has  the  absolute  dominion 


§§  680-685  OWNERSHIP.  224 

over  it,  and  may  nse  it  or  dispose  of  it  according 
to  bis  pleasure,  subject  only  to  general  laws. 

§  680.    The  ownership  of  property  is  qualified: 

1.  When  it  is  shared  with  one  or  more  persons; 

2.  '^^'hen  the  time  of  enjoyment  is  deferred  or 
limited; 

3.  When  the  use  is  restricted. 

§  681.  The  ownership  of  property  by  a  single 
person  is  designated  as  a  sole  or  several  owner- 
ship. 

§  682.  The  ownership  of  property  by  several 
persons  is  either: 

1.  Of  joint  interests; 

2.  Of  partnership  interests; 

3.  Of  interests  in  common; 

4.  Of  community  interest  of  husband  and  wife. 

§  683.  A  joint  interest  is  one  owned  by  several 
persons  in  equal  shares,  by  a  title  created  by  a 
single  will  or  transfer,  when  expressly  declare<l  in 
the  will  or  transfer  to  be  a  joint  tenancy,  or  when 
granted  or  devised  to  executors  or  trustees  as 
joint  tenants. 

Section  (JSG,  infra:  This  section  is  founded  upon 
Stats.  1855,  171,  sec.  1. 

§  684.  A  partnership  interest  is  one  owned  by 
several  persons  in  partnership,  for  partnership 
purposes. 

Partnership:    See  post,  sec.  2395  et  seq. 

§  685.  An  interest  in  common  is  one  owned  by 
several  persons,  not  in  joint  ownership  or  part- 
nership. 

Tenancy  in  common:    See  sees.  G83,  G8G. 

Partition:  See  Code  Civ.  Proc,  sees.  752  et 
seq. 


225  OWNERSHIP.  §§  686-692 

Husband  and  wife  as  tenants  in  common:  See 
sec.  101. 

Devise  or  legacy  to  two  or  more  malies  tliem 
owners  in  common:     See  sec.  1350. 

§  686.  Every  interest  created  in  favor  of  sev- 
eral persons  in  their  own  right  is  an  interest  in 
common,  unless  acquired  by  them  in  partnership, 
for  partnership  purposes  or  unless  declared  in  its 
creation  to  be  a  joint  interest,  as  provided  in  sec- 
tion GS3,  or  unless  acquired  as  community  prop- 
erty. 

§  687.  Community  property  is  property  ac- 
quired by  husband  and  wife,  or  either,  during 
marriage,  when  not  acquired  as  the  separate  prop- 
erty of  either. 

Community  property:    See  sec.  1G4,  ante. 

§  688.  In  respect  to  the  time  of  enjoyment,  an 
interest  in  property  is  either: 

1.  Present  or  future;  and, 

2.  Perpetual  or  limited. 

§  689.  A  present  interest  entitles  the  owner  to 
the  immediate  possession  of  the  property. 

§  690.  A  future  Interest  entitles  the  owner  to 
the  possession  of  the  property  only  at  a  future  pe- 
riod. 

Accumulations  as  future  interests:  See  sees.  722 
et  spq..  and  738. 

Conditions  upon  the  enjoyment  of  estates:  See 
sees.  707  et  seq. 

Terminating  future  interests:  See  sees.  739  et 
seq. 

§  691.  A  perpetual  interest  has  a  duration 
equal  to  that  of  the  property. 

§  692.  A  limited  interest  has  a  duration  less 
than  that  of  the  property. 


§§  693-701  OWNERSHIP.  226 

§  693.    A  future  interest  is  either: 

1.  Vested;  or, 

2.  Continj^ent.     •- 

§  694.  A  future  interest  is  vested  when  there 
is  a  person  in  being  who  would  have  a  right,  de- 
feasible or  indefeasible,  to  the  immediate  posses- 
sion of  the  property,  upon  the  ceasing  of  the  inter- 
mediate or  precedent  interest. 

§  695.  A  future  interest  is  contingent,  whilst 
the  person  in  whom,  or  the  event  upon  which,  it 
is  limited  to  take  effect  remains  uncertain. 

§  696.  Two  or  more  future  interests  may  be 
created  to  take  effect  in  the  alternative,  so  that 
if  the  first  in  order  fails  to  vest,  the  next  in  suc- 
cession shall  be  substituted  for  it,  and  take  effect 
accordingly. 

§  697.  A  future  interest  is  not  void  merely  be- 
cause of  the  improbability  of  the  contingency  on 
which  it  is  limited  to  take  effect. 

§  698.  When  a  future  interest  is  limited  to  suc- 
cessors, heirs,  issue,  or  children,  posthumous  chil- 
dren are  entitled  to  take  in  the  same  manner  as 
if  living  at  the  death  of  their  parent. 

Future  interests  defeated  by  birth  of  posthu- 
mous child:    See  sec.  739,  post. 

§  699.  Future  interests  pass  by  succession,  will, 
and  transfer,  in  the  same  manner  as  present  in- 
terests- 

§  700.  A  mere  possibility,  such  as  the  expect- 
ancy of  an  heir  apparent,  is  not  to  be  deemed  an 
interest  of  any  kind. 

§  701.  In  respect  to  real  or  immovable  prop- 
erty, the  interests  mentioned  in  this  chapter  are 


227  OWNERSHIP.  §§  702-709 

denominated  estates  and  are  specially  named  and 
classitied  in  Part  II.  of  this  division. 

§  702.  The  names  and  classification  of  interests 
in  real  property  have  only  such  application  to  in- 
terests in  personal  property  as  is  in  this  division 
of  the  Code  expressly  provided. 

S  703.  No  future  interest  in  property  is  recog- 
nized by  the  law,  except  such  as  is  defined  in  this 
division  of  the  Code. 


ARTICLE  II. 

CONDITIONS   OF  OWNERSHIP. 

§  707.  Fixing  the  time  of  enjoyment. 

§  708.  Conditions. 

§  7u9.  Certain  ronditions  precedent  void. 

§  710.  Conditions   restiaining   marriage   void. 

§  711.  Conditions  lestraimng  alienation  void. 

§  707.  The  time  when  the  enjoyment  of  prop- 
erty is  to  be.irin  or  end  may  be  determined  by  com- 
putation, or  be  made  to  depend  on  events.  In  the 
latter  case,  the  enjoyment  is  said  to  be  upon  con- 
dition. 

Conditional  legacies:   See  sees.  1345,  post,  et  seq. 

§  708.  Conditions  are  precedent  or  subsequent. 
The  former  fix  the  beginning,  the  latter  the  end- 
ing, of  the  right. 

Conditional  obligations:  See  sees.  1434-1442, 
post. 

Conditional  limitation.— Eemainder  operating  to 
abridge  precedent  estate:    Sec.  778,  post. 

§  709.  If  a  condition  precedent  requires  the 
performance  of  an  act  wrong  of  itself,  the  instru- 
ment containing  it  is  so  far  void,  and  tlie  right 
cannot  exist.  If  it  requires  tlie  performance  of 
an  act  not  wrong  of  itself,  but  otherwise  unlaw- 


§§  710-716  OWNERSHIP.  228 

ful,  the  instrument  takes  effect  and  the  condition 
is  void. 

§  710.  Conditions  imposing  restraints  upon 
marriage,  except  upon  the  marriage  of  a  minor 
are  void;  but  this  does  not  affect  limitations  where 
the  intent  was  not  to  forbid  marriage,  but  only 
to  give  the  use  until  marriage.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4.  In 
effect,  July  1,  1874.] 

Contracts  in  restraint  of  marriage:  See  post, 
sec.  1G76. 

§  711.  Conditions  restraining  alienation,  when 
repugnant  to  the  interest  created,  are  void. 

See  also  sees.  715,  772,  post,  and  the  title  on  Uses 
and  Trusts,  post,  sees.  847  et  seq. 


ARTICLE  III. 

RESTRAINTS  UPON  ALIENATION. 

§  715.    How  long  it  may  be  suspended. 

§  716.    Future  interests  void,  which  suspend  power  of  alien- 
ation. 
§  717.    Leases  of  agricultural  land,  for  over  ten  years,  void. 
§  718.    Leases  of  city  lots,  for  over  twenty  years,  void. 

§  715.  The  absolute  power  of  alienation  can- 
not be  suspended,  by  any  limitation  or  condition 
whatever,  for  a  longer  period  than  during  the  con- 
tinuance of  the  lives  of  persons  in  being  at  the 
creation  of  the  limitation  or  condition,  except  in 
the  single  case  mentioned  in  section  772. 

See  also  sec.  771,  post. 

§  716.  Every  future  interest  is  void  in  its  crea- 
tion which,  by  any  possibility,  may  suspend  the 
absolute  power  of  alienation  for  a  longer  period 
than  is  prescribed  in  this  chapter.  Such  power 
of  alienation  is  suspended  when  there  are  no  per- 


229  OWNERSHIP.  §§  717-724 

sons  in  being  by  whom  an  absolute  interest  in  pos- 
session can  be  conveyed. 

§  717.  No  lease  or  grant  of  land  for  agricul- 
tural purposes  for  a  longer  period  than  ten  years, 
in  which  shall  be  reserved  any  rent  or  service  of 
any  liind,  shall  be  valid.  [Amendment  approved 
March  20,  1895;  Stats.  1895,  p.  59.  In  eft'ect  in 
sixty  days.] 

§  718.  No  lease  or  grant  of  any  town  or  city 
lot,  for  a  longer  period  than  twenty  years,  in 
which  shall  be  reserved  any  rent  or  service  of  any 
Ivind,  shall  be  valid. 


ARTICLE   IV. 

ACCUMULATION. 

§  722.  Dispositions  of  income. 

§  <z3.  Accumulations,  when  void. 

§  724.  Accumulation  of  income. 

§  4-5.  Other  directions,  "when  void  in  part. 

§  726.  Application  of  income  to  support,  &c.,  of  minor. 

§  722.  Dispositions  of  the  income  of  property 
to  accrue  and  to  be  received  at  any  time  subse- 
quent to  the  execution  of  the  instrument  creating 
such  disposition,  are  governed  by  the  rules  pre- 
scribed in  this  title  in  relation  to  future  interests. 

§  723.  All  directions  for  the  accumulation  of 
the  income  of  property,  except  such  as  are  allowed 
by  this  title,  are  void. 

§  724.  An  accumulation  of  the  income  of  prop- 
erty, for  the  benefit  of  one  or  more  persons,  may 
be  directed  by  any  will  or  transfer  in  writing  suffi- 
cient to  pass  the  property  out  of  which  the  fund  is 
to  arise,  as  follows: 

1.  If  such  accumulation  is  directed  to  commence 
on  the  creation  of  the  interest  out  of  which  the  in- 
come is  to  arise,  it  must  be  made  for  the  benefit 

Civ.    Code.— 20. 


§§  725,  726  OWNERSHIP.  230 

of  one  or  more  minors  then  in  beinj;,  and  termi- 
nate at  the  expiration  of  tbeir  minority;  or, 

2.  If  siuli  accuuiLilatiou  is  direc-ied  to  commence 
at  any  time  subsecinent  to  llie  creation  of  the  in- 
terest out  of  whicli  tlie  income  is  to  arise,  it  must 
commence  wiiliin  tlie  time  in  tliis  title  permitted 
for  the  vesting:  of  future  interests,  and  during 
the  minority  of  tlie  beneticiaries,  and  terminate 
at  the  expiration  of  such  minority. 

Ownership  of  undisposed  accumulations:  See 
sec.  733,  post. 

Accumulations  liable  for  debts:  See  sec.  859. 

Ifestraint  upon  disposition  of  beneficiar^^'s  inter- 
est:   See  sec.  8l>7. 

Bequests  of  income:  See  post,  sees.  1357,  subd. 
3,  1300. 

Annuities:    See  same  sections. 

§  725.  If  in  either  of  the  cases  mentioned  in 
the  hist  section  the  direction  for  an  accumulation 
is  for  a  lonj;er  term  than  durinj»'  the  minority  of 
the  beneliciaries,  the  direction  only,  whether  sep- 
arable or  not  from  other  provisions  of  the  instru- 
ment, is  void  as  respects  the  time  beyond  such 
minority. 

§  726.  When  a  minor  for  whose  benefit  an  ac- 
cunndation  has  been  directed  is  destitute  of  other 
sutticient  means  of  support  and  education,  tlie 
proi^er  court,  upon  application,  may  direct  a  suit- 
able sum  to  be  applied  thereto  out  of  the  fund. 

Maintenance  of  ward  out  of  bis  estate:  See  Code 
Civ.  Proc,  sees.  17U2,  1771. 


231  OWNERSHIP.  §§  732-740 

CHAPTER   III. 

RIGHTS   OF   OWNERS. 

§  732,    Increase  of  property. 

§  733.     lu  certain  cases  who  entitled  to  income  of  property. 

§  732.  The  owner  of  a  thing  also  owns  all  its 
products  and  accessions. 

Accessions  to  real  property:  See  sees.  1013  et 
seq. 

Accessions  to  personal  property:  See  sees.  1025 
et  seq. 

§  733.  When,  in  consequence  of  a  valid  limita- 
tion of  a  future  interest,  there  is  a  suspension  of 
tlie  power  of  alienation  or  of  the  ownership  during 
the  continuation  of  which  the  income  is  undis- 
posed of,  and  no  valid  direction  for  its  accumula- 
tion is  given,  such  income  belongs  to  the  persons 
presumptively  entitled  to  the  next  eventual  inter- 
est. 

CHAPTER  IV. 

TERMINATION   OF   OWNERSHIP. 

§  739.  Future  interests,  when  defeated. 

§  740.  Fame. 

§  741.  Future  interests,  when  not  defeated. 

§  742.  Same. 

§  739.  A  future  interest,  depending  on  the  con- 
tingency of  the  death  of  any  i)erson  witliout  suc- 
cessors, heirs,  issue,  or  children,  is  defeated  by 
the  birth  of  a  posthumous  cliild  of  such  person, 
capable  of  taldng  by  succession. 

Stats.  IS.").'),  171.  sec.  4. 

Posthumous  children:    See  sec.  G98. 

§  740.  A  future  interest  may  be  defeated  in 
any  manner  or  by  any  act  or  means  which  the 


§§  741-749  GENERAL    DEFINITIONS.  232 

party  creating  such  interest  provided  for  or  au- 
thorized in  the  creation  thereof;  nor  is  a  future 
interest,  thus  liable  to  be  defeated,  to  be  on  that 
ground  adjudged  void  in  its  creation. 

§  741.  No  future  interest  can  be  defeated  or 
barred  by  any  alienation  or  other  act  of  the  owner 
of  the  intermediate  or  precedent  interest,  nor  by 
any  destruction  of  such  precedent  interest  by  for- 
feiture, surrender,  merger,  or  otherwise,  except  as 
provided  by  the  next  section,  or  where  a  forfeiture 
is  imposed  by  statute  as  a  penalty  for  the  viola- 
tion thereof. 

See  see.  7G7. 

§  742.  No  future  interest,  valid  in  its  creation, 
is  defeated  by  the  determination  of  the  precedent 
interest  before  the  liappeuing  of  the  contingency  on 
which  the  future  interest  is  limited  to  talie  effect; 
but  should  such  contingency  afterwards  happen, 
the  future  interest  takes  effect  in  the  same  man- 
ner, and  to  the  same  extent,  as  if  the  precedent 
interest  had  continued  to  the  same  period. 

TITLE  III. 

GENERAL  DEFINITIONS. 

§  748.    Income,   what. 

§  749.    Time   of  creation,    what. 

§  748.  The  income  of  property,  as  the  terra  is 
used  in  this  part  of  the  Code,  includes  the  rents 
and  profits  of  real  property,  the  interest  of  money, 
dividends  upon  stocli,  and  other  produce  of  per- 
sonal property. 

§  749.  The  delivery  of  the  grant,  where  a  limi- 
tation, condition,  or  future  interest  is  created  by 
grant,  and  tlie  death  of  the  testator,  wliere  it  is 
created  by  will,  is  to  be  deemed  the  time  of  the 
creation  of  tlie  limitation,  condition,  or  interest, 
within  the  meaning  of  this  part  of  the  Code. 


PART   II. 


REAL  OR   IMMOVABLE   PROPERTY. 

Title  I.    General  ProTisions,  §  Too. 

II.    Estates  iu  Real  Property,  §§  TGl-811. 
III.    Rijilits  and  Obligations  of  Owners,  §§  818- 

841. 
IV.     Uses  and  Trusts,  §§  847-871. 
V.    Powers,  §§  878-940.     [Repealed.] 

TITLE  I. 
GENERAL  PROVISIONS. 

Section  755.     Real   property,   how   governed. 

§  755.  Real  property  within  tbis  State  is  ffov. 
erned  by  the  law  of  this  State,  except  wliere  the 
title  is  in  the  United  States.  [Amendment  ap- 
proved March  30,  1874.  Amendments  1873-4,  p. 
218.    In  effect  July  1,  1874.] 

Territorial  jurisdiction  of  the  State:  See  Polit. 
Code,  sees.  33,  34. 


§§  761-762        ESTATES  IN  REAL  PROPERTY.  234 

TITLE  II. 

ESTATES  IN  REAL  PROPERTY. 

Chapter  I.    Estates  iu  General,  §§  701-781. 

II.  Termination  of  Estates,  §§  789-793. 
III.    Servitudes,  §§  801-811. 

CHAPTER  I. 

ESTATES  IN  GENERAL. 

§  761.  Enumeration  of  estates. 

§  732.  \\  hat  estate  a  fee  simple. 

§  7b3.  Conditional  fees  and  estates  tail  abolished. 

§  764.  Certain  remainders  valid. 

§  765.  Fieeholds.     Chattels  real.     Chattel  interests. 

§  766.  Estates  for  life  of  a  third  person,  when  a  freehold, 
&c. 

§  767.  Future  estates,  what. 

§  768.  Reverpirns. 

§  769.  Ren  Binders. 

§  770.  Limitations  of  chattels  real. 

§  771.  Suspension  by  trust. 

§  772,  Contingent   remainder   in   fee. 

§  773.  Remainders,  future  and  contingent  estates,  how  cre- 
ated. 

§  774.  Limitation  of  successive  estates  for  life. 

§  775.  Remainder  upcn  estates  for  life  of  third  person. 

§  776.  Contingent  remainder  on  a  term  of  years. 

§  777.  Remainder  of  estates  for  life. 

§  778.  Remainder  upon  a  contingency. 

§  779.  Heirs  of  a  tenant  for  life,  when  to  take  as  pur- 
chasers. 

§  780.  Constiuction  of  certain  remainder. 

§  781.  Effect  of  power  of  appointment. 

§  761.    Estates  in  real  property,  in  respect  to 
the  duration  of  their  enjoyment,  are  eitlier: 

1.  Estates  of  inlieritance  or  perpetual  estates; 

2.  Estates  for  life; 

3.  Estates  for  years;  or, 

4.  Estates  at  will. 
See  sec.  705. 

§  762.    Every  estate  of  inheritance  is  a  fee,  and 
every  such  estate,  when  not  defeasible  or  condi- 


235  ESTATES   IN    REAL   PROPERTY.        §§  763-768 

tional,  is  a  fee  simple,  or  an  absolute  fee. 
[Amendment  approved  March  30,  1874;  Stats. 
1873-4,  p.  218.     In  effect  July  1,  1874.] 

Transferring  fee,  words  of  inheritance  not  es- 
sential:   See  sec.  1072,  post. 

Devising  fee,  "heirs"  not  essential:    Sec.  1329. 

§  763.  Estates  tail  are  abolished,  and  every  es- 
tate which  would  be  at  common  law  adjudged  to 
be  a  fee  tail  is  a  fee  simple;  and  if  no  valid  re- 
mainder is  limited  thereon,  is  a  fee  simple  abso- 

§  764.  Where  a  remainder  in  fee  is  limited  up- 
on any  estate,  which  would  by  the  common  law 
be  adjudged  a  fee  tail,  such  remainder  is  valid  as 
a  contingent  limitation  upon  a  fee,  and  vests  in 
possession  on  the  death  of  the  first  taker,  without 
issue  Uving  at  the  time  of  his  death. 

§  765.  Estates  of  inheritance  and  for  life  are 
called  estates  of  freehold;  estates  for  years  are 
chattels  real;  and  estates  at  will  are  chattel  in- 
terests, but  are  not  liable  as  such  to  sale  on  exe- 
cution. 

§  766.  An  estate,  during  the  life  of  a  third 
person,  whetLer  limited  to  heirs  or  otherwise,  is  a 
freehold.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  218.   In  effect  July  1,  1874.] 

§  767.  A  future  estate  may  be  limited  by  the 
act  of  the  party  to  commence  in  possession  at  a 
future  day,  either  without  the  intervention  of  a 
precedent  estate,  or  on  the  termination,  by  lapse 
of  time  or  otherwise,  of  a  precedent  estate  cre- 
ated at  the  same  time. 

See  sec.  742. 

§  768.  A  reversion  is  the  residue  of  an  estate 
left  by  operation  of  law  in  the  grantor  or  his  sue- 


§§  769-773       ESTATES   IN   REAL  PROPERTY.  233 

cessors,  or  in  the  successors  of  a  testator,  com- 
mencing? in  possession  on  tlie  determination  of  a 
particular  estate  granted  or  devised. 

§  769.  When  a  future  estate,  other  than  a  re- 
version, is  dependent  on  a  precedent  estate,  it  may- 
be called  a  remainder,  and  may  he  created  and 
transferred  by  that  name. 

§  770.  The  absolute  ownership  of  a  term  of 
years  cannot  be  suspended  for  a  longer  period 
than  the  absolute  power  of  alienation  can  be  sus- 
pended in  restiect  to  a  fee.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  p.  218.  m 
effect  July  1,  1874.] 

§  771.  The  suspension  of  all  power  to  alienate 
the  subject  of  a  trust,  other  than  a  power  to  ex- 
change it  for  other  property  to  be  held  upon  the 
same  trust,  or  to  sell  it  and  reinvest  the  proceeds 
to  be  held  upon  the  same  trust,  is  a  suspension  of 
the  power  of  alienation,  within  the  meaning  of 
section  715. 

§  772.  A  contingent  remainder  in  fee  may  be 
created  on  a  prior  remainder  in  fee,  to  take  effect 
in  the  event  that  the  persons  to  whom  the  first 
remainder  is  limited  die  under  the  age  of  twenty- 
one  ye;  rs,  or  ui  on  any  oilier  ccutingenry  by  which 
the  estate  of  such  persons  may  be  determined  be- 
fore they  attain  majority. 

§  773.  Subject  to  the  rules  of  this  title,  and  of 
Part  I.  of  this  division,  a  freehold  estate,  as  well 
as  a  chattel  real,  may  be  created  to  commence  at 
a  future  day;  an  estate  for  life  may  be  created 
in  a  term  of  years,  and  a  remainder  limited  there- 
on; a  remainder  of  a  freehold  or  chattel  real, 
either  contingent  or  vested,  may  be  created,  ex- 
pectant on  the  determination  of  a  term  of  years; 
and  a  fee  may  be  limited  on  a  fee  upon  a  contin- 


237  ESTATES   IN   REAL  PROPERTY.        §§  774-779 

gency,   which,   if   it   should   occur,   must   happen 
within  the  period  prescribed  in  this  title. 

§  774.  Successive  estates  for  life  cannot  be  lim- 
ited, except  to  persons  in  being  at  the  creation 
thereof,  and  all  life  estates  subsequent  to  those  of 
persons  in  being  are  void;  and  upon  the  death  of 
those  persons  the  remainder,  if  valid  in  its  crea- 
tion, tal^es  effect  in  the  same  manner  as  if  no 
other  life  estate  had  been  created.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4.  In 
effect  July  1,  1874.] 

§  775.  No  remainder  can  be  created  upon  suc- 
cessive estates  for  life,  provided  for  in  the  preced- 
ing section,  unless  such  rem.-iinder  is  in  fee;  nor 
can  a  remainder  be  created  upon  such  estate  in  a 
term  for  years,  unless  it  is  for  tlie  whole  residue 
of  such  term.  [Amendment  approved  March  30, 
1874:  Amendments  1873-4,  p.  219.  In  effect  July 
1,  1874.] 

§  776.  A  contingent  remainder  cannot  be  cre- 
ated on  a  term  of  years,  unless  the  nature  of  the 
contingency  on  which  it  is  limited  is  such  that 
the  remainder  must  vest  in  interest  during  the 
continuance  or  at  the  termination  of  lives  in  be- 
ing at  the  creation  of  such  remainder. 

§  777.  No  estate  for  life  can  be  limited  as  a  re- 
mainder on  a  term  of  years,  except  to  a  person  in 
being  at  the  creation  of  such  estate. 

§  778.  A  remainder  may  be  limited  on  a  con- 
tincrency  whir-h.  in  case  it  should  happen,  will 
operate  to  abridge  or  determine  the  precedent  es- 
tate: and  every  such  remainder  is  to  be  deemed  a 
conditional  limitation. 

See  sec.  780,  infra. 

§  779.    When  a  remainder    is    limited    to    the 


§§  780-790       ESTATES   IN   REAL   PROPERTY.  238 

heirs,  or  heirs  of  the  body,  of  a  person  to  whom  a 
life  estate  in  the  same  property  is  given,  the  per- 
sons who,  on  the  termination  of  the  life  estate, 
are  the  successors  or  heirs  of  the  body  of  the 
owner  for  lite,  are  entitled  to  take  by  virtue  of 
the  remainder  so  limited  to  them,  and  not  as  mere 
successors  of  the  owner  for  life. 

§  780.  When  a  remainder  on  an  estate  for  life 
or  for  years  is  not  limited  on  a  contingency  de- 
feating or  avoiding  such  precedent  estate,  it  is  to 
be  deemed  intended  to  tal^e  effect  only  on  the 
death  of  the  first  taker,  or  the  expiration,  by 
lapsie  of  time,  of  such  term  of  years. 

§  781.  A  general  or  special  power  of  appoint- 
ment does  not  prevent  the  vesting  of  a  future  es- 
tate limited  to  take  effect  in  case  such  power  is 
not  executed. 

CnAFTER  II. 

TERMINATION  OF  ESTATES. 

§  789.  Tenancy  at  will  may  be  terminated  by  notice. 

§  700.  Effect  cf  notice. 

§  791.  Re-entry,  when  and  how  to  be  made. 

§  7P2.  ?umn:ary  proceedings  in  certain  cases  provided  for. 

§  793.  Notice  not  necessary  before  action. 

§  789.  A  tenancy  or  other  estate  at  will,  how- 
ever created,  may  be  terminated  by  the  landlord's 
giving  notice  in  writing  to  the  tenant,  in  the  man- 
ner prescribed  by  section  11G2  of  the  Code  of  Civil 
Procedure,  to  remove  from  the  premises  within 
a  period  of  not  less  than  one  month  to  be  specified 
in  the  notice. 

Changing  terms  of  tenancy:    See  sec.  827,  post. 

§  790.  After  such  notice  has  been  served,  and 
the  period  specified  by  such  notice  has  expired, 
but  not  before,  the  landlord  may  re-enter,  or  pro- 
ceed according  to  law  to  recover  possession. 


239  ESTATES   IX   REAL   PROPERTY.        §§  791-801 

§  791.  Whenever  the  right  of  re-entry  is  given 
to  a  grantor  or  lessor  in  any  grant  or  lease,  or 
otherwit^e,  such  re-entry  may  be  made  at  any  time 
after  the  right  has  accrued  upon  three  days'  no- 
tice, as  provided  in  sections  llGl  and  1102,  Code 
of  Civil  Procedure. 

§  792.  Summary  proceedings  for  obtaining  pos- 
session of  real  property  forcibly  entered,  or  for- 
cibly and  unlawfully  detained,  are  provided  for 
in  sections  1159  to  1175,  both  inclusive,  of  the 
Code  of  Civil  Procedure. 

§  793.  An  action  for  the  possession  of  real 
property  leased  or  granted,  with  a  right  of  re- 
entry, may  be  maintained  at  any  time,  in  the  dis- 
trict court,  after  the  right  to  re-enter  has  accrued, 
without  the  notice  prescribed  in  section  791. 


CHAPTER  III. 

SERVITUDES. 

§  SOI.  Servitudes  attached  to  land. 

§  802.  Servitudes  not  attached  to  land. 

§  80"].  Designaiicn  of  estates. 

§  804.  By   whom   grantable. 

§  805.  By  whom  held. 

§  806.  Extent    of   servitudes. 

§  8^7.  Apportioning  easfments. 

§  808.  Rights  of  owner  of  future  estate. 

§  809.  Actions  by-  owner  and    occupant    of  dominant  tene- 
ment. 

§  810.  Actions  by  owner  of  servient  tenement. 

§  811.  How  extinguished. 

§  801.  The  following  land  burdens,  or  servi- 
tudes upon  land,  may  be  attached  to  other  land  as 
incidents  or  appurtenances,  and  are  then  called 
easements: 

1.  The  right  of  pasture; 

2.  1'he  right  of  Gshing; 

3.  The  right  of  taking  game; 


§  802  ESTATES   IN   REAL  PROPERTY.  240 

4.  The  right  of  way; 

5.  The  right  of  talking  water,  wood,  minerals, 
and  other  things; 

6.  The  right  of  transacting  business  upon  land; 

7.  The  right  of  conducting  lawful  sports  upon 
land; 

8.  The  right  of  receiving  air,  light,  or  heat  from 
or  over,  or  discharging  the  same  upon  or  over 
land; 

9.  The  right  of  receiving  water  from  or  dis- 
charging the  same  upon  land; 

10.  The  right  of  flooding  land; 

11.  The  right  of  having  water  flow  without 
diminution  or  disturbance  of  any  kind; 

12.  The  right  of  using  a  wall  as  a  party  wall; 

13.  The  right  of  receiving  more  than  natural 
support  from  adjacent  land  or  things  aflixed  there- 
to; 

14.  The  right  of  having  the  whole  of  a  division 
fence  maintained  by  a  coterminous  owner; 

15.  The  right  of  having  public  conveyances 
stopped,  or  of  stopping  the  same  on  land; 

16.  The  right  of  a  seat  in  church; 

17.  The  right  of  burial. 

See  post,  sees.  832,  841,  1104,  1410  et  seq.;  ante, 
sees.  552.  COS. 

§  802.  The  following  land  burdens  or  servi- 
tudes upon  land,  may  be  granted  and  held,  though 
not  attached  to  land: 

1.  The  right  to  pasture,  and  of  fishing  and  tak- 
ing game; 

2.  The  right  of  a  seat  in  church; 

3.  The  right  of  burial; 

4.  The  right  of  talving  rents  and  tolls; 

5.  The  rigbt  of  way; 

6.  The  right  of  taking  water,  wood,  minerals,  or 
other  things.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  p.  219.  In  effect  imme- 
diately.] 


241  ESTATES   IN   REAL  PROPERTY.        §§  803-810 

§  803.  The  land  to  which  an  easement  is  at- 
tached is  called  the  dominant  tenement;  the  land 
upon  which  a  burden  or  servitude  is  laid  is  called 
the  servient  tenement. 

§  804.  A  servitude  can  be  created  only  by  one 
who  has  a  vested  estate  in  the  servient  tenement. 

§  805.  A  servitude  thereon  cannot  be  held  by 
the  owner  of  the  servient  tenement. 

Servitude  is  extinguished  by  vesting  of  right  to 
the  servitude  and  the  right  to  the  servient  tene- 
ment in  the  same  person:   See  sec.  811. 

§  806.  The  extent  of  a  servitude  is  determined 
by  the  terms  of  the  grant,  or  the  nature  of  the 
enjoyment  by  which  it  was  acquired. 

§  807.  In  case  of  partition  of  the  dominant  ten- 
ement, the  burden  must  be  apportioned  according 
to  the  division  of  the  dominant  tenement,  but  not 
in  such  a  way  as  to  increase  the  burden  upon  the 
servient  tenement. 

§  808.  The  owner  of  a  future  estate  in  a  domi- 
nant tenement  may  use  easements  attached  there- 
to for  the  purpose  of  viewing  waste,  demanding 
rent,  or  removing  an  obstruction  to  the  enjoyment 
of  such  easements,  although  such  tenement  is  oc- 
cupied by  a  tenant. 

§  809.  The  owner  of  any  estate  in  a  dominant 
tenement,  or  the  occupant  of  such  tenement,  may 
maintain  an  action  for  the  enforcement  of  an  ease- 
ment attached  thereto. 

Enforcement  of  easement  by  injunction:  See 
High  on  Injunctions,  sees.  485  et  seq. 

§  810.  The  owner  in  fee  of  a  servient  tenement 
may  maintain  an  action  for  the  possession  of  the 
land,  against  any  one  unlawfully  possessed  there- 

Civ.    Code.-21. 


§  811  RIGHTS,    ETC.,    OF    OWNERS.  242 

of,  tbongb  a  servitude  exists  thereon  in  favor  of 
the  public. 

§  811.    A  servitufle  is  exting-uisbed: 

1.  By  tbe  vestinp:  of  tlie  right  to  the  servitude 
and  the  right  to  the  servient  tenement  in  the  same 
person; 

2.  By  tlie  destruction  of  the  servient  tenement; 

3.  By  tlie  ])erformance  of  any  act  upon  eitlier 
tenement,  by  the  owner  of  tlie  servitude,  or  \vitb 
bis  assent,  which  is  incompatible  with  its  nature 
or  exercise;  or, 

4.  ^^'hen  tlie  servitude  was  acquired  by  enjoy- 
ment, by  disuse  thereot  by  the  owner  of  the  ser- 
vitude for  the  period  prescribed  for  acquiring  title 
by  enjoyment. 

Extinguishment  of  servitude.— Subd.  1.  Vesting 
of  right  to  servitude  and  riglit  to  servient  tene- 
ment in  same  person:     See  sec.  805,  ante. 


TITLE  III. 

RIGHTS    AND    OBLIGATIONS    OF   OWNERS. 

Chapter  I.    Rights  of  Owners,  §§  818-834. 

II.    Obligations  of  Owners,  §§  840-841. 

CHArTER  I. 

RIGHTS    OF   OWNERS. 

Article  I.     Incidents  of  Ownership,   §§   818-827. 
II.     Boundaiies,   §§  829-834. 

ARTICLE  I. 

INCIDENTS  OF  OWNERSHIP. 

§  818.     Rights  of  terant  for  life. 

§  S19.     Rights  of  tenant  for  years,  &c. 

§  820.    Same. 


243  RIGHTS,    ETC.,    OF    OWNERS.  §§  818-822 

§  821.  Rights  of  grantees  of  rents  and  reversions. 

§  822.  Liabi.ity  of  assigns  of  lessee. 

§  823.  R. gilts  of  lessees  and  thtir  assigns,   &c. 

§  824.  Remedy  on  leases  for  life. 

§  825.  Rent   dependent  on    life. 

§  8-ti.  Remedy  of  reversioners,  «S:c. 

§  8^7.  Teims  of  lease  may  be  changed  by  notice. 

§  818.  The  owner  of  a  life  estate  mny  use  the 
land  in  tlie  same  manner  as  the  owner  of  a  fee 
simple,  except  that  he  must  do  no  act  to  the  in- 
jury of  the  inheritance. 

Duties  of  tenants  for  life:    See  sec.  840,  post. 

§  819.  A  tenant  for  years  or  at  will,  unless  he 
is  a  wroniidcer  by  holdin.u-  over,  may  occupy  the 
buildin.crs,  take  the  annual  products  of  the  soil, 
work  mines  nnd  quarries  open  at  the  commence- 
ment of  his  tenancy. 

§  820.  A  tenant  for  years  or  at  will  has  no 
other  rijrhts  to  the  property  than  such  as  are 
given  to  him  by  the  a^reemeut  or  instrument  by 
which  his  tenancy  is  acquired,  or  by  the  last  sec- 
tion. 

§  821.  A  person  to  Tvhora  any  real  property  is 
transferred  or  devised,  upon  which  rent  has  been 
reserved,  or  to  whom  any  such  rent  is  transferred, 
is  entitled  to  the  same  remedies  for  recovery  of 
rent,  for  nonperformance  of  any  of  the  terms  of 
the  lease,  or  for  any  waste  or  cause  of  forfeiture, 
as  his  grantor  or  devisor  might  have  had. 

Grants  of  rent  are  not  binding  upon  the  tenant 
until  he  has  notice  thereof:     Sec.  1111,  post. 

Hiring  of  real  property  generally:  See  sees.  1941 
et  seq. 

§  822.  "Whatever  remedies  the  lessor  of  any 
real  property  [has]  against  his  immpdiate  lessee 
for  the  breach  of  any  agreement  in  the  lease,  or 
for  recovery  of  the  possession,  he  has  against  the 


§§  623-827  RIGHTS,    ETC.,    OF    OWNERS.  244 

assignees  of  the  lessee,  for  any  cause  of  action  ac- 
cruing wliile  tlie3'  are  such  assignees,  except  -uhere 
tlie  assignment  is  made  by  way  of  security  for  a 
loan,  and  is  not  accompanied  by  possession  of  the 
premises.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  219.  In  effect  July  1, 
1S74.1 

§  823.  Whatever  remedies  the  lessee  of  any 
real  property  may  have  against  his  immediate 
lessor,  for  the  breach  of  any  agreement  in  the 
lease,  he  may  have  against  the  assigns  of  the 
lessor,  and  the  assigns  of  the  lessee  may  have 
against  the  lessor  and  his  assigns,  except  upon 
covenants  against  incumbrances  or  relating  to  the 
title  or  possession  of  the  premises. 

§  824.  Rent  due  upon  a  lease  for  life  may  be 
recovered  in  the  same  manner  as  upon  a  lease  for 
years. 

§  825.  Rent  dependent  on  the  life  of  a  person 
may  be  recovered  after  as  well  as  before  his 
death. 

§  826.  A  person  having  an  estate  in  fee,  in  re- 
mainder or  revision,  may  maintain  an  action  for 
any  injury  done  to  the  inlieritance,  notwithstand- 
ing an  intervening  estate  for  life  or  years,  and  al- 
though, after  its  commission,  his  estate  is  trans- 
ferred, and  he  has  no  interest  in  the  property  at 
the  commencement  of  the  action. 

§  827.  In  all  leases  of  lands  or  tenements,  or  of 
any  interest  tlierein,  from  month  to  month,  the 
landlord  may,  upon  giving  notice  in  writing  at 
least  tifteen  days  before  the  expiration  of  the 
month,  cliange  the  terms  of  the  lease  to  take  ef- 
fect at  the  expiration  of  tlie  mouth.  The  notice, 
when  served  upon  the  tenant,  sliall  of  itself  oper- 
ate and  be  effectual  to  create  and  establish,  as  a 


245  RIGHTS,    ETC.,    OF    OWNERS.  §§  829-831 

part  of  the  lease,  the  terms,  rent,  and  conditions 
specitied  in  the  notice,  if  the  tenant  shall  continue 
to  hold  the  premises  after  the  expiration  of  the 
mouth.  [Amendment  approved  March  27,  1874; 
Amendments  187o-4.  p.  22U.  In  effect  July  1, 
1874.1 

Termination  of  tenancy  at  ^Yill:  See  sec.  789, 
ante. 

ARTICLE  II. 

BOUNDARIES. 

§  829.  Rights  of  owner. 

§  830.  LoLudaiies  by  water. 

§  Wl.  Boui.daries  by  way.s. 

§  802.  Lattiai   and  subjacent  support. 

§  8;i3.  Trees  whose  truuks  aie  wholly  on  land  of  one. 

§  S6i.  Line  irees. 

§  829.  The  OTrner  of  land  in  fee  has  the  right 
to  tlie  surface  and  to  everything  permanently  sit- 
uated beneath  or  above  it. 

§  830.  Except  v^'here  tlio  grant  under  which 
the  land  is  held  indicates  a  different  intent,  the 
owner  of  the  upland,  when  it  borders  on  tide- 
water, takes  to  ordinary  higli-water  marl^;  when 
it  borders  upon  a  navigable  lal^e  or  stream,  where 
there  is  no  tide,  the  owner  takes  to  the  edge  of 
the  Inke  or  stream,  at  low-waier  mark;  wlien  it 
borders  ui)on  any  otlier  water,  tlie  owner  takes  to 
tlie  middle  of  tlie  lake  or  stream.  [Amendment 
approved  March  .30,  1874:  Amendments  1873-4;  p. 
220.     In  effect  July  1,  1874.] 

Navigable  waters  boundaries. — Navigable  wa- 
ters enumerated:   See  Polit.  Code,  sees.  2348,  2349. 

§  831.  An  owner  of  land  bounded  by  a  road  or 
street  is  presumed  to  own  to  the  center  of  lue 
way,  but  the  contrary  may  be  shown. 

See  post,  sec.  1112. 


§§  832-841  RIGHTS,    ETC.,    OF    OWNERS.  246 

§  832.  Each  coterminous  owner  is  entitled  to 
the  hiteral  and  subjacent  support  which  his  kind 
receives  from  the  adjoining  hind,  subject  to  the 
right  of  the  owner  of  the  adjoining  hind  to  malie 
proper  and  usual  excavations  on  the  same  for  pur- 
poses of  construction,  on  using  ordinary  care  and 
skill,  and  taking  reasonable  precautions  to  sus- 
tain the  land  of  the  other,  and  giving  previous  rea- 
sonable notice  to  the  other  of  his  intention  to  make 
such  excavations.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  p.  221.  In  effect 
July  1,  1874.] 

§  833.  Trees  whose  trunks  stand  wholly  upou 
the  land  of  one  owner  belong  exclusively  to  him, 
although  their  roots  grow  into  the  land  of  an- 
other. 

§  834.  Trees  whose  trunks  stand  partly  on  the 
land  of  two  or  more  coterminous  owners  belong  to 
them  in  common. 

CHAPTER   II. 

OBLIGATIONS  OF  OWNERS. 

§  840.    Duties  of  tenant  for  life. 
§  841.    MoLuments  and  fences. 

§  840.  The  owner  of  a  life  estate  must  keep  the 
buildings  and  fences  in  repair  from  ordinary 
waste,  and  must  pay  the  taxes  and  other  annual 
charges,  aud  a  just  proportion  of  extraordinary 
assessments  benefiting  the  whole  inheritance. 

Rights  of  tenants  for  life:     See  sec.  818,  ante. 

Decree  declaring  life  estate  terminated:  Code 
Civ.  Proc,  sec.  1723. 

§  841.  Coterminous  owners  are  mutually  bound 
equally  to  maintain: 

1.  The  boundaries  and  monuments  between 
them: 


247  USES  AND   TRUSTS.  §  847 

2.  The  fences  between  them,  unless  one  of  them 
chooses  to  let  his  laud  lie  without  fencing;  in 
which  case,  if  he  afterwards  incloses  it.  he  must 
refund  to  the  other  a  just  proportion  of  the  value 
at  that  time,  of  any  division  fence  made  by  the 
latter. 

TITLE  IV. 

USES   AND    TRUSTS. 

§  847.  What  uses  and  trusts  may  exist. 

§  848.  Right  to  rossession  of  land  creates  legal  ownership. 
(Rppeal-d.) 

§  8 '9.  Ceitain  trusts  unaffected,     f Repealed.) 

§  850.  Trustees  of  estate  for  use  of  another  take  no  interest. 
(Rfp  rl  d.) 

§  851.  Precedng  sections  qualified.     (Repealed.) 

§  852.  Trust  must  be  in  wiiting. 

§  853.  Transfer  to  one  for  money  paid  by  another. 

§  854.  Rights  of  creditors.     (Repealed.) 

§  8".o.  Section   853  qualified.      (Repealed.) 

§  856.  Purchasers   protected. 

§  857.  For  what  purposes  express  trusts  may  be  created. 

§  858.  Certain   devises  in   trust  to  be  deemed  powers. 

§  859.  Profits  of  land  liable  to  creditors  in  certain  cases. 

§  SCO.  Powers,  execution  of. 

§  861.  Creation  of  certain  powers  not  prohibited.  (Re- 
pealed.) 

§  862.  And  land,  &c.,  to  descend  to  persons  entitled.  (Re- 
pealed.) 

$  863.  Trustees  of  express  trusts  to  have  whole  estate. 

§  8^.  Author  of  trust  may  devise,  &c. 

§  8?5.  Title  of  grantor  of  trust  property. 

§  866.  Interests  remaining  in  grantor  of  express  trust. 

§  867.  Powers  over  trust  of  party  interested. 

§  868.  Same. 

§  869.  Effect   of   omitting  trust  in  conveyance. 

§  870.  Certain   pales,   &c.,  by  trustees,  void. 

§  871.  When  estate  of  trustee  to  cease. 

§  847.  Fses  and  trusts  in  relation  to  real  prop- 
erty are  those  only  which  are  specified  in  this 
title. 

Kules  as  to  suspending  power  of  alienation: 
Sees.  715,  TIG,  771,  ante. 

Trusts  for  accumulation  of  income:  Sees,  722- 
726.  ante. 


§§  848-857  USES  AND  TRUSTS.  248 

Trusts  in  general:    Sees.  2215-2224,  post. 
Trusts  for  third  persons:   Sees.  2250-2289,  post. 

§§  848,  849,  850,  851.  [Repealed  March  30, 
1874;  Amendments  1873-4,  221.  In  effect  July  1, 
1874.] 

§  852.  No  trust  in  relation  to  real  property  is 
valid  unless  created  or  declared: 

1.  By  a  written  instrument,  subscribed  by  the 
trustee,  or  by  his  agent  thereto  authorized  by 
writing; 

2.  By  the  instrument  under  which  the  trustee 
claims  the  estate  atl'ected;  or, 

3.  By  operation  of  law. 

Trust  for  the  benefit  of  third  person,  how  cre- 
ated.    Sees.  2259-2289. 

§  853.  "When  a  transfer  of  real  property  is 
made  to  one  person,  and  the  consideration  tliereof 
is  paid  by  or  for  another,  a  trust  is  presumed  to 
result  in  favor  of  the  person  by  or  for  wliom  such 
payment  is  made.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  p.  221.  In  effect 
July  1,  1874.] 

§§  854,  855.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  221.    In  effect  July  1,  1874.] 

§  856.  No  implied  or  resulting  trust  can  preju- 
dice the  rights  of  a  purchaser  or  encumbrancer  of 
real  property  for  value  and  without  notice  of  the 
trust. 

See  SGC.  2243. 

Bona  fide  purchasers  generally:    See  sec.  1214. 

§  857.  Express  trusts  may  be  created  for  any 
of  the  following  purposes: 

1.  To  sell  real  property,  and  apply  or  dispose 
of  the  proceeds  in  accordance  with  the  instru- 
meut  creating  the  trust; 

2.  To  mortgage  or  lease  real  property  for  the 


249  USES  AND  TRUSTS.  §§  858-860 

benefit  of  annuitants  or  other  legatees,  or  for  the 
purpose  of  satisfying  any  charge  thereon; 

3.  To  receive  tlie  rents  and  profits  of  real  prop- 
erty, and  pay  them  to  or  apply  tliem  to  the  use  of 
any  person,  whether  ascertained  at  the  time  of  the 
creation  of  tlie  trust  or  not,  for  himself  or  for  his 
family,  during  tlie  life  of  such  person,  or  for  any 
shorter  term,  subject  to  the  rules  of  Title  II.  of 
this  part;  or, 

4.  To  receive  the  rents  and  profits  of  real  prop- 
erty, and  to  accumulate  the  same  for  the  purposes 
and  within  the  limits  prescribed  by  the  same  title. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  221.    In  effect  July  1,  1874.] 

See  sec.  859. 

Estate  of  trustee:     See  infra,  sec.  8G3. 

§  858.  Where  a  power  to  sell  real  property  is 
given  to  a  mortgagee,  or  other  encumbrancer  in  an 
instrument  intended  to  secure  the  payment  of 
money,  the  power  is  to  be  deemed  a  part  of  the 
security,  and  vests  in  any  person  who,  by  assign- 
ment, becomes  entitled  to  the  money  so  secured 
to  be  paid,  and  may  be  executed  by  him  whenever 
the  assignment  is  duly  aclcnowledged  and  record- 
ed [Xew^  section  approved  March  30,  1874; 
Amendments  1873-4,  p.  222.  In  effect  July  1, 
1874.] 

§  859.  Where  a  trust  is  created  to  receive  the 
rents  and  profits  of  real  property,  and  no  valid 
direction  for  accumulation  is  given,  the  surplus 
of  such  rents  and  profits,  beyond  the  sum  that 
may  be  necessary  for  tlie  education  and  support 
of  the  person  for  whose  benefit  the  trust  is  created, 
is  liable  to  the  claims  of  the  creditors  of  such  per- 
son, in  the  same  manner  as  personal  property 
which  cannot  be  reached  by  execution. 

§  860.    Where  a  power  is  vested  in  several  per- 


§§  S61-866  USES  AND   TRUSTS.  250 

sons,  all  must  unite  in  its  execution;  but  in  case 
any  one  or  more  of  tliem  is  dead,  the  power  may 
be  executed  by  the  survivor  or  survivors,  unless 
otherwise  prescribed  by  the  terms  of  the  power. 
[New  section  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  222.    In  effect  July  1,  1874.] 

Death  of  cotrustee,  the  trust  survives  to  the  oth- 
ers: Sec.  2288,  post. 

§§  861,  862.  [Repealed  March  30,  1874;  Amend- 
ments 1S73-4,  222.    In  effect  July  1,  1874,] 

§  863.  Except  as  hereinafter  otherwise  provid- 
ed, every  express  trust  in  real  property,  valid  as 
such  in  its  creation  vests  the  whole  estate  in  the 
trustees,  subject  only  to  the  execution  of  the  trust. 
The  beneficiaries  talie  no  estate  or  interest  in  the 
property,  but  may  enforce  the  performance  of 
the  trust. 

Enforcing  performance  of  the  trust:  See  post, 
"Obligation  of  Trustees,"  sees.  2228-2239,  and  sees. 
2258-l:^u3. 

§  864.  Notwithstanding  anything  contained  in 
the  last  section,  the  author  of  a  trust  may,  in  its 
creation,  prescribe  to  whom  the  real  property  to 
which  the  trust  relates  shall  belong,  in  the  event 
of  the  failure  or  termination  of  the  trust,  and  may 
transfer  or  devise  such  property,  subject  to  the 
execution  of  the  trust. 

§  865,  The  grantee  or  devisee  of  real  property 
subject  to  a  trust  acquires  a  legal  estate  in  the 
property,  as  against  all  persons  except  the  trustees 
and  those  lawfully  claiming  under  them. 

§  866.  "Where  an  express  trust  is  created  in  re- 
lation to  real  property,  every  estate  not  embraced 
in  the  trust,  and  not  otherwise  disposed  of,  is  left 
in  the  author  of  the  trust  or  his  successors. 


251  USES  AND   TRUSTS.  §§  867-871 

§  867.  The  beneficiary  of  a  trust  for  the  receipt 
of  the  rents  and  profits  of  real  property,  or  for 
the  payment  of  an  annuity  out  of  such  rents  and 
profits,  may  be  restrained  from  disposing  of  his 
interest  in  such  trust,  during  his  life  or  for  a  term 
of  years,  by  the  instrument  creating  the  trust. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  223.    In  effect  July  1,  1874.] 

Accumulations:  See  ante,  sees.  722  et  seq.;  sec. 
859. 

§  868.  [Repealed  March  30,  1874;  Amendments 
1873-4,  223.    In  effect  July  1,  1874.] 

§  869.  Where  an  express  trust  is  created  in  re- 
lation to  real  property,  but  is  not  contained  or  de- 
clared in  the  grant  to  the  trustee,  or  in  an  instru- 
ment signed  by  him,  and  recorded  in  the  same 
office  with  the  grant  to  the  trustee,  such  grant 
must  be  deemed  absolute  in  favor  of  purchasers 
from  such  trustee  without  notice,  and  for  a  valua- 
ble consideration.  [Amendments  approved  March 
30.  1874;  Amendments  1873-4,  p.  223.  In  effect 
July  1,  1874.] 

Purchasers  from  trustee  of  express  trust,  when 
protected:  See  note  to  sec.  8G3,  supra;  sec.  870, 
infra. 

Purcha^^er,  when  charged  with  implied  or  re- 
sulting tru^^t:  See  sec.  85G,  ante. 

§  870.  Where  a  trust  in  relation  to  real  prop- 
erty is  expressed  in  the  instrument  creating  the 
estate,  eveiy  transfer  or  other  act  of  the  trustees, 
in  contravention  of  the  trust,  is  absolutely  void. 

§  871.  When  the  purpose  for  which  an  express 
trust  was  created  ceases,  the  estate  of  the  trustee 
also  ceases. 


POWERS.  252 

TITLE  V. 
POWERS. 

Title  V,  Part  II,  of  Division  II,  on  Powers,  of 
the  Civil  Code,  embracing  sections  of  said  Code 
from  section  878  to  94G,  inclusive,  is  repealed. 
[Approved  April  30.    In  effect  July  1,  1874.] 


PART  III. 


PERSONAL  OR  MOVABLE  PROPERTY. 

Title  I.    Personal  Property  in  General,  §§  946-947. 
II.    Particular  Kinds  of  Personal  Property, 
§§  953-994. 

TITLE  I. 

PERSONAL  PROPERTY  IN  GENERAL. 

§  946.    By  what  law  governed. 

§  947.    Future   interests   in  perishable    property,   how   pro- 
tected.    (Repealed.) 

§  946.  If  there  is  no  law  to  the  contrary  in  the 
place  Tvhere  personal  property  is  situated,  it  is 
deemed  to  follow  the  person  of  its  owner,  and  is 
governed  by  the  law  of  his  domicile. 

§  946  having  been  repealed  by  clerical  error  in 
1874,  was  re-enacted  at  session  of  1875-6. 

§  947.     [Repealed  March  30,  1874;  Amendments 
1873-4,  223.    In  effect  July  1,  1874.] 
Civ.   Code.— 22. 


§§  953-954  THINGS  IN  ACTION.  254 

TITLE  11. 

PARTICULAR   KINDS   OF   PERSONAL   PROPERTY. 

Chapter    1.  Things  in  action,  §§  953-954. 

II.  Shipping,  §§  960-973. 

III.  Products  of  the  Mind,  §§  980-985. 

IV.  Other  Kinds  of  Personal  Property,  §§ 

991-994. 

CHAPTER  I. 

THINGS  IN  ACTION. 

§  953.    Things  in  action  defined. 
§  954.    Transfer  and  survivorship. 

§  953.  A  thing  in  action  is  a  right  to  recover 
money  or  other  personal  property  by  a  judicial 
proceeding.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  p.  223.  In  effect  July 
1,  1874.] 

§  954.  A  thing  in  action,  arising  out  of  the  vio- 
lation of  a  right  of  property,  or  out  of  an  obliga- 
tion, may  be  transferred  by  the  owner.  Upon  the 
death  of  the  owner  it  passes  to  his  personal  rep- 
resentatives, except  where,  in  the  cases  provided 
in  the  Code  of  Civil  Procedure,  it  passes  to  his 
devisees  or  successor  in  office. 

See  sees.  1582,  1583. 

See  also  "Transfer  of  Obligations,"  sec.  1458, 
post. 

Suing  on  choses  in  action:  See  Code  Civ.  Proc, 
sees.  367-369,  1582,  1583. 


255  SHIPPING.  §§  960-963 

CHAPTER   II. 
SHIPPING. 

Article    I.     General    Provisions,    §§    960-966. 
II.     Rules  of  Navigation,   §§  970-973. 

ARTICLE  I. 

GENERAL   PROVISIONS. 

§  960.  Definition  of  a  ship  and  shipping  terms. 

§  961.  Appurtenances  and  equipments. 

§  962.  Foreign   and   domestic   navigation. 

§  963.  Foreign  and  domestic  navigation. 

§  964.  Several   owners. 

§  965.  Owner  for  voyage. 

§  966.  Registry,  &c. 

§  960.  The  term  ship,  or  shipping,  when  used 
in  this  Code,  includes  steamboats,  sailing  vessels, 
canal  boats,  barges,  and  every  structure  adapted 
to  be  navigated  from  place  to  place  for  the  trans- 
portation of  merchandise  or  persons.  [Amend- 
ment approved  March  30,  1874;  Amendments 
1873-4,  p.  224.    In  effect  July  1,  1874.] 

§  961.  All  things,  belonging  to  the  owners, 
which  are  on  board  a  ship,  and  are  connected  with 
its  proper  use,  for  the  objects  of  the  voyage  and 
adventure  in  which  the  ship  is  engaged,  are  deem- 
ed its  appurtenances. 

§  962.  Ships  are  engaged  either  in  foreign  or 
domestic  navigation,  or  in  the  fisheries.  Ships 
are  engaged  in  foreign  navigation  when  passing 
to  or  from  a  foreign  country;  and  in  domestic 
navigation,  when  passing  from  place  to  place  with- 
in the  United  States. 

§  963.    A  ship  in  a  port  of  the  State  to  which 


§§  964-970  SHIPPING.  256 

it  belongs  is  called  a  domestic  ship;  in  another 
port  it  is  called  a  foreign  ship. 

§  964.  If  a  ship  belong  to  several  persons,  not 
partners,  and  they  differ  as  to  its  use  or  repair, 
the  controversy  may  be  determined  by  any  court 
of  competent  jurisdiction. 

§  965.  If  the  owner  of  a  ship  commits  its  pos- 
session, and  navigation  to  another,  that  other,  and 
not  the  owner,  is  responsible  for  its  repairs  and 
supplies. 

Charter  party  defined:  See  post,  sec.  1959. 

§  966.  The  registry,  enrollment,  and  license  of 
ships  are  regulated  by  acts  of  Congress. 


ARTICLE  II. 

RULES  OF  NAVIGATION. 

§  970.  Collisions. 

1.  Rules  as  to  ships  meeting  each  other. 

2.  The  rule  for  sailing  vessels. 

3.  Rules  for  steamers  in  narrow  channels. 

4.  Same. 

5.  Rules  for  steam  vessels  on  different  courses. 

6.  Meeting  of   steamers. 

§  971.     Collision  from  breach  of  rules. 

§  972.    Breaches  of  such  rules  to  imply  willful  default. 

§  973.    Loss,  how  apportioned. 

§  970.  In  the  case  of  ships  meeting,  the  follow- 
ing rules  must  be  observed,  in  addition  to  those 
prescribed  to  that  part  of  the  Political  Code  which 
relates  to  navigation: 

1.  Whenever  any  ship,  whether  a  steamer  or  sail- 
ing ship,  proceeding  in  one  direction,  meets  an- 
other ship,  whether  a  steamer  or  sailing  ship,  pro- 
ceeding in  another  direction,  so  that  if  both 
ships  were  to  continue  their  respective  courses 
they  would  pass  so  near  as  to  involve  the  risli  of 


257  SHIPPING.  §  970 

a  collision,  the  helms  of  both  ships  must  be  put 
to  port  so  as  to  pass  on  the  port  side  of  each  other; 
and  this  rule  applies  to  all  steamers  and  all  sail- 
ing ships,  whether  on  the  port  or  starboard  tack, 
and  whether  close-hauled  or  not,  except  where  the 
circumstances  of  the  case  are  such  as  to  render 
a  departure  from  the  rule  necessary  in  order  to 
avoid  immediate  danger,  and  subject  also  to  a  due 
regard  to  the  dangers  of  navigation,  and,  as  re- 
gards sailing  ships  on  the  starboard  tacli  close- 
hauled,  to  the  keeping  such  ships  under  command; 

2.  In  the  case  of  sailing  vessels,  those  having 
the  wind  fair  must  give  way  to  those  on  a  wind. 
When  both  are  going  by  the  wind,  the  vessel  on 
the  starboard  tack  must  keep  her  wind,  and  the 
one  on  the  larboard  tack  bear  up  strongly,  pass- 
ing each  other  on  the  larboard  hand.  When  both 
vessels  have  the  wind  large  or  abeam,  and  meet, 
they  must  pass  each  other  in  the  same  way  on  the 
larboard  hand,  to  effect  which  two  last-mentioned 
objects  the  helm  must  be  put  to  port.  Steam  ves- 
sels must  be  regarded  as  vessels  navigating  with 
a  fair  wind,  and  should  give  way  to  sailing  vessels 
on  a  wind  of  either  tack; 

3.  A  steamer  navigating  a  narrow  channel 
must,  whenever  it  is  safe  and  practicable,  keep 
to  that  side  of  the  fairway  or  mid  channel  which 
lies  on  the  starboard  side  of  the  steamer; 

4.  A  steamer  when  passing  another  steamer  in 
such  channel,  must  always  leave  the  other  upon 
the  larboard  side; 

5.  When  steamers  must  inevitably  or  necessa- 
rily cross  so  near  that,  by  continuing  their  respec- 
tive courses,  there  would  be  a  risk  of  collision, 
each  vessel  must  put  her  helm  to  port,  so  as  al- 
ways to  pass  on  the  larboard  side  of  each  other; 

6.  The  rules  of  this  section  do  not  apply  to  any 
case  for  which  a  different  rule  is  provided  by  the 
regulations  for  the  government  of  pilots  of  steam- 


§§  971-973  SHIPPING.  258 

ers  approaching  each  other  within  sound  of  the 
steam-whistle,  or  by  the  regulations  concerning 
lights  upon  steamers,  prescribed  under  authority 
of  the  acts  of  Congress,  approved  August  thir- 
tieth, eighteen  hundred  and  fifty-two,  and  April 
twenty-ninth,  eighteen  hundred  and  sixty-four. 

For  Rules  of  Navigation,  etc.,  see  Polit.  Code, 
sees.  2360-2379. 

§  971.  If  it  appears  that  a  collision  was  occa- 
sioned by  failure  to  observe  any  rule  of  the  fore- 
going section,  the  owner  of  the  ship  by  which 
such  rule  is  infringed  cannot  recover  compensa- 
tion for  damages  sustained  by  the  ship  in  such 
collision,  unless  it  appears  that  the  circumstances 
of  the  case  made  a  departure  from  the  rule  nec- 
essary. 

§  972.  Damage  to  person  or  property  arising 
from  the  failure  of  a  ship  to  observe  any  rule  of 
section  970,  must  be  deemed  to  have  been  occa- 
sioned by  the  willful  default  of  the  person  in 
charge  of  the  decli  of  such  ship  at  the  time,  un- 
less it  appears  that  the  circumstances  of  the  case 
made  a  departure  from  the  rule  necessary. 

§  973.  Losses  caused  by  collision  are  to  be 
borne  as  follows: 

1.  If  either  party  was  exclusively  in  fault  he 
must  bear  his  own  loss,  and  compensate  the  other 
for  any  loss  he  has  sustained; 

2.  If  neither  was  in  fault,  the  loss  must  be 
borne  by  him  on  whom  it  falls; 

3.  If  both  were  in  fault,  the  loss  is  to  be  equally 
divided,  unless  it  appears  that  there  was  a  great 
disparity  in  fault,  in  which  case  the  loss  must  be 
equitably  apportioned; 

4.  If  it  cannot  be  ascertained  where  the  fault 
lies,  the  loss  must  be  equally  divided. 


369  PRODUCTS    OF    THE    MIND.  §§  980-983 

CHAPTER  III. 

PRODUCTS   OF  THE  MIND. 

§  980.  How  far  the  subject  of   ownership. 

§  981.  Joint  authorship. 

§  982.  Transfer. 

I  983.  Effect  of  publication. 

§  984.  Subsequent  inventor,  author,  &c. 

§  985.  Private  writings. 

§  980.  The  author  of  any  product  of  the  mind, 
whether  it  is  an  invention,  or  a  composition  in  let- 
ters or  art,  or  a  design,  with  or  without  delinea- 
tion, or  other  graphical  representation,  has  an 
exclusive  ownership  therein,  and  in  the  represen- 
tation or  expression  thereof,  which  continues  so 
long  as  the  product  and  the  representations  or  ex- 
pressions thereof  made  by  him  remain  in  his  pos- 
session. 

Trademarlis:  See  Polit.  Code,  sees.  3196  et  seq., 
and  sec.  991  of  this  Code. 

§  981.  Unless  otherwise  agreed,  a  product  of 
the  mind  in  the  production  of  which  several  per- 
sons are  jointly  concerned  is  owned  by  them  as 
follows : 

1.  If  the  product  is  single,  in  equal  proportions; 

2.  If  it  is  not  single,  in  proportion  to  the  contri- 
bution of  each. 

§  982.  The  owner  of  any  product  of  the  mind, 
or  of  any  representation  or  expression  thereof, 
may  transfer  his  property  in  the  same. 

§  983.  If  the  owner  of  a  product  of  the  mind 
intentionally  makes  it  public,  a  copy  or  reproduc- 
tion may  be  made  public  by  any  person,  without 
responsibility  to  the  owner,  so  far  as  the  law  of 
this  State  is  concerned. 


§§  984-991  OTHER  KINDS  OP  PERSONAL  PROPERTY.  260 

§  984.  If  the  owner  of  a  product  of  the  mind 
does  not  make  it  public,  any  other  person  subse- 
quently and  originally  producing  the  same  thing 
has  the  same  right  therein  as  the  prior  author, 
which  is  exclusive  to  the  same  extent  against  all 
persons  except  the  prior  author,  or  those  claiming 
under  him. 

§  985.  Letters  and  other  private  communica- 
tions in  writing  belong  to  the  person  to  whom 
they  are  addressed  and  delivered;  but  they  can- 
not be  published  against  the  will  of  the  writer,  ex- 
cept by  authority  of  law. 


CHAPTER  IV. 

OTHER  KINDS  OF  PERSONAL  PROPERTY. 

§  991.  Trade-marks. 

§  992.  Goodwill  of  business. 

§  993.  Same. 

§  994,  Title  deeds. 

§  991.  One  who  produces  or  deals  in  a  particu- 
lar thing,  or  conducts  a  particular  business,  may 
appropriate  to  his  exclusive  use,  as  a  trademark, 
any  form,  symbol,  or  name,  which  has  not  been 
so  appropriated  by  another,  to  designate  the  ori- 
gin or  ownership  thereof;  but  he  cannot  exclusive- 
ly appropriate  any  designation,  or  part  of  a  desig- 
nation, which  relates  only  to  the  name,  quality,  or 
the  description  of  the  thing  or  business,  or  the 
place  where  the  thing  is  produced,  or  the  business 
is  carried  on.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  p.  224.  In  effect  July 
1,  1874.] 

As  to  trademarks,  see  Polit.  Code,  sees.  3196- 
3198;  Penal  Code,  sees.  350-354. 

Act  to  protect  trademarks,  see  post.  Appendix, 
p.  835. 


261  OTHER  KINDS  OF  PERSONAL  PROPERTY.  §§  992-994 

§  992.  The  good  will  of  a  business  is  the  ex- 
pectation of  continued  public  patronage,  but  it 
does  not  include  a  right  to  use  the  name  of  any 
person  from  whom  it  was  acquired. 

Good  will;  See  post,  sec.  1674. 

§  993.  The  good  will  of  a  business  is  property, 
transferable  like  any  other. 

§  994.  Instruments  essential  to  the  title  of  real 
property,  and  which  are  not  kept  in  a  public  office 
as  a  record,  pursuant  to  law,  belong  to  the  person 
in  whom,  for  the  time  being,  such  title  may  be 
vested,  and  pass  with  the  title. 


PART  IV. 


ACQUISITION  OF  PROPERTY. 

Title  I.    Modes   in  which   Property   may  be  Ac- 
quired, §§  1000-1001. 
II.    Occupancy,  §§  1006-1007. 

III.  Accession,  §§  1013-1033. 

IV.  Transfer,  §§  1039-1231. 

V.  Homesteads,  §§  1237-1269. 

VI.  Wills,  §§  1270-1377. 

VII.  Succession,  §§  1383-1408. 

VIII.  Water  Rights,  §§  1410-1422. 

TITLE  I. 

MODES   IN   WHICH  PROPERTY   MAY   BE   ACQUIRED. 

§  1000.    Property,  how  acquired. 

§  1001.    Acquisition  of  property  by  exercise  of  eminent  do- 
main. 

§  1000.    Property  is  acquired  by: 

1.  Occupancy; 

2.  Accession; 

3.  Transfer; 

4.  Will;  or. 

5.  Succession. 


§  1001.  Any  person  may,  without  further  legis- 
lative action,  acquire  private  property  for  any  use 
specified  in  section  1238  of  the  Code  of  Civil  Pro- 
cedure, either  by  consent  of  the  owner  or  by  pro- 
ceedings had  under  the  provisions  of  Title  VII, 


263  OCCUPANCY.  §§  1006,  1007 

Part  III,  of  the  Code  of  Civil  Procedure;  and  any 
person  seeking  to  acquire  property  for  any  of  tlie 
uses  mentioned  in  such  title  is  "an  agent  of  the 
State,"  or  a  "person  in  charge  of  such  use."  with- 
in the  meaning  of  those  terms  as  used  in  such 
title.  This  section  shall  be  in  force  from  and 
after  the  fourth  day  of  April,  eighteen  hundred 
and  seventy-two. 

Eminent  domain:  See  Code  Civ.  Proc,  sees.  1237- 
1260. 

TITLE    II. 

OCCUPANCY. 

§  1006.     Simple  occupancy. 
I  1007.    Prescription. 

§  1006.  Occupancy  for  any  period  confers  a  ti- 
tle sufficient  against  all  except  the  State  and  those 
who  have  title  by  prescription,  accession,  trans- 
fer, will,  or  succession. 

§  1007.  Occupancy  for  the  period  prescribed  by 
the  Code  of  Civil  Procedure  as  sufficient  to  bar  an 
action  for  the  recovery  of  the  property  confers  a 
title  thereto,  denominated  a  title  by  prescription, 
which  is  sufficient  against  all. 

Adverse  possession  passing  title:  See  Code  Civ. 
Proc,  sec.  321. 


§§  1013-1015  ACCESSION.  264 

TITLE  III. 

ACCESSION. 

Chapter  I.    To  Real  Property,  §§  1013-1019. 

II.    To  Personal  Property,  §§  1025-1033. 

CHAPTER  I. 

ACCESSION    TO    REAL   PROPERTY.        "" 

§  1013.  Fixtures. 

§  1014.  Alluvion. 

§  1015.  Sudden  removal  of  bank. 

§  1016.  Islands,  in  navigable  streams. 

§  1017.  In  unnavigable  streams. 

§  1018.  Islands  formed  by  division  of  stream. 

§  1019.  Wtiat  fixtures  tenant  may  remove. 

§  1013.  When  a  person  affixes  his  property  to 
the  land  of  another,  without  an  agreement  permit- 
ting him  to  remove  it,  the  thing  affixed,  except  as 
provided  in  section  ten  hundred  and  nineteen,  be- 
longs to  the  owner  of  the  land,  unless  he  chooses 
to  require  the  former  to  remove  it.  [Amendment 
approved  March  80,  1874;  Amendments  1873-4,  p. 
224.    In  effect  July  1,  1874.] 

Fixtures:  See  ante,  sec.  668. 

§  1014.  Where,  from  natural  causes,  land  forms 
by  imperceptible  degrees  upon  the  bank  of  a  river 
or  stream,  navigable  or  not  navigable,  either  by 
accumulation  of  material  or  by  the  rescission  of 
the  stream,  such  land  belongs  to  the  owner  of 
the  bank,  subject  to  any  existing  right  of  way 
over  the  bank. 

§  1015.  If  a  river  or  stream,  navigable  or  not 
navigable,  carries  away,  by  sudden  violence,  a 
considerable  and  distinguishable  part  of  a  bank, 
and  bears  it  to  the  opposite  bank,  or  to  another 


265  ACCESSION.  §§  1016-101& 

part  of  the  same  bank,  the  owner  of  the  part  car- 
ried away  may  reclaim  it  within  a  year  after  the 
owner  of  the  land  to  which  it  has  been  united 
takes  possession  thereof. 

§  1016.  Islands  and  accumulations  of  land, 
formed  in  the  beds  of  streams  which  are  naviga- 
ble, belong  to  the  State,  if  there  is  no  title  or  pre- 
scription to  the  contrary. 

§  1017.  An  island,  or  an  accumulation  of  land, 
formed  in  a  stream  which  is  not  navigable,  be- 
longs to  the  owner  of  the  shore  on  that  side  where 
the  island  or  accumulation  is  formed;  or,  if  not 
formed  on  one  side  only,  to  the  owners  of  the 
shore  on  the  two  sides,  divided  by  an  imaginary 
line  drawn  through  the  middle  of  the  river. 

§  1018.  If  a  stream,  navigable  or  not  naviga- 
ble, in  forming  itself  a  new  arm,  divides  itself  and 
surrounds  land  belonging  to  the  owner  of  the 
shore,  and  thereby  forms  an  island,  the  island  be- 
longs to  such  owner. 

§  1019.  A  tenant  may  remove  from  the  demis- 
ed premises  any  time  during  the  continuance  of 
his  term,  anything  affixed  thereto  for  purposes  of 
trade,  manufacture,  ornament,  or  domestic  use,  if 
the  removal  can  be  effected  without  injury  to  the 
premises,  unless  the  thing  has,  by  the  manner  in 
which  it  is  affixed,  become  an  integral  part  of  the 
premises.  [New  section  approved  March  30,  1874; 
Amendments  187.3-4,  p.  224.  In  effect  July  1. 
1874.] 

Civ.    Code.— 23. 


S§  1025-1028  ACCESSION.  236 

CHAPTER   II. 

ACCESSION   TO  PERSONAL.  PROPERTY. 

§  1025.  Accession  by  uniting  several  things. 

§  1026.  Principal   part,   what. 

§  1027.  Same. 

§  1028.  Uniting  materials   and  workmanship. 

§  1029.  Inseparable  materials. 

§  1030.  Materials  of  several  owners. 

^  1031.  Willtul    trespassers. 

§  1032.  Owner  may  elect  between  the  thing  and  its  value. 

§  1033.  Wrongdoer  liable  in  damages. 

§  1025.  When  things  belonging  to  different 
owners  have  been  united  so  as  to  form  a  single 
thing,  and  cannot  be  separated  without  injury,  the 
whole  belongs  to  the  owner  of  the  thing  which 
forms  the  principal  part;  who  must,  however,  re- 
imburse the  value  of  the  residue  to  the  other  own- 
er, or  surrender  the  whole  to  him. 

§  1026.  That  part  is  to  be  deemed  the  principal 
to  which  the  other  has  been  united  only  for  the 
use,  ornament,  or  completion  of  the  former,  unless 
the  latter  is  the  more  valuable,  and  has  been  unit- 
ed without  the  l^nowledge  of  its  owner,  who  may, 
in  the  latter  case,  require  it  to  be  separated  and 
returned  to  him,  although  some  injury  should  re- 
sult to  the  thing  to  Avhich  it  has  been  united. 

§  1027.  If  neither  part  can  be  considered  the 
principal,  within  the  rule  prescribed  by  the  last 
section,  the  more  valuable,  or,  if  the  values  are 
nearly  equal,  the  more  considerable  in  bulk,  is  to 
be  deemed  the  principal  part. 

§  1028.  If  one  makes  a  thing  from  materials 
belonging  to  another,  the  latter  may  claim  the 
thing  on  reimbursing  the  value  of  the  workman- 
ship, unless  the  value  of  the  workmanship  exceeds 
the  value  of  the  materials,  in  which  case  the  thing 


267  ACCESSION.  §§  1029-1032 

belongs  to  the  maker,  on  reimbursing  the  value  of 
the  materials. 

§  1029.  Where  one  has  made  use  of  materials 
which  in  part  belong  to  him  and  in  part  to  an- 
other, in  order  to  form  a  thing  of  a  new  descrip- 
tion, without  having  destroyed  any  of  the  materials, 
but  in  such  a  way  that  they  cannot  be  separated 
without  inconvenience,  the  thing  formed  is  com- 
mon to  both  proprietors;  in  proportion,  as  respects 
the  one,  of  the  materials  belonging  to  him,  and  as 
respects  the  other,  of  the  materials  belonging  to 
him  and  the  price  of  his  worl^manship. 

§  1030.  When  a  thing  has  been  formed  by  the 
admixture  of  several  materials  of  different  own- 
ers, and  neither  can  be  considered  the  principal 
substance,  an  owner  without  whose  consent  the 
admixture  was  made  may  require  a  separation,  if 
the  materials  can  be  separated  without  inconven- 
ience. If  they  cannot  be  thus  separated,  the  own- 
ers acquire  the  thing  in  common,  in  proportion  to 
the  quantity,  quality,  and  value  of  their  mate- 
rials; but  if  the  materials  of  one  were  far  superior 
to  those  of  the  others,  both  in  quantity  and  value, 
he  may  claim  the  thing  on  reimbursing  to  the 
others  the  value  of  their  materials. 

§  1031.  The  foregoing  sections  of  this  article 
are  not  applicable  to  cases  in  which  one  willfully 
uses  the  materials  of  another  without  his  consent; 
but,  in  such  cases,  the  product  belongs  to  the  own- 
er of  the  material,  if  its  identity  can  be  traced. 

§  1032.  In  all  cases  where  one  whose  material 
has  been  used  without  his  l^nowledge,  in  order  to 
form  a  product  of  a  different  description,  can 
claim  an  interest  in  such  product,  he  has  an  op- 
tion to  demand  either  restitution  of  his  material 
in  kind,  in  the  same  quantity,  weight,  measure, 


§§  1033-1039  TRANSFER.  268 

and  quality,  or  the  value  thereof;  or  where  he  is 
entitled  to  the  product,  the  value  thereof  in  place 
of  the  product. 

§  1033.  One  who  wrongfully  employs  materials 
belonging  to  another  is  liable  to  him  in  damages, 
as  well  as  under  the  foregoing  provisions  of  this 
chapter. 


TITLE  IV. 

TRANSFER. 

Chapter  I.    Transfer  in  General,  §§  1039-1085. 

II.    Transfer  of    Real    Property,  §§  1091- 
1115. 
III.    Transfer    of    Personal    Property,     §§ 

1135-1153. 
IV.    Recording   Transfers    of    Real    Prop- 
erty, §§  1158-1217. 
V.    Unlawful  Transfers,  §§  1227-1231. 

CHAPTER  I. 

TRANSFERS  IN  GENERAL. 

Article  I.  Definition   of   Transfer,    §§   1039-1040. 

II.  What  may  be  Transferred.  §§  1044-47. 

III.  Mode  of  Transfer,   §§  1052-1060. 

IV.  Interpretation  of  Grants,  §§  1066-1072. 
V.  Effect  of  Transfer,  1083-1085. 

ARTICLE  I. 

DEFINITION  OF  TRANSFER. 

§  1039.    Transfer,    what. 
§  1040.    Voluntary  transfer. 

§  1039.  Transfer  is  an  act  of  the  parties,  or  of 
the  law  by  which  the  title  to  property  is  conveyed 
from  one  living  person  to  another. 


269  TRANSFER.  §§  1040-1047 

§  1040.  A  voluntary  transfer  is  an  executed 
contract,  subject  to  all  rules  of  law  concerning 
contracts  in  general;  except  that  a  consideration 
is  not  necessary  to  its  validity. 

Gifts:  See  sees,  1146,  post,  et  seq. 


ARTICLE  II. 

WHAT    MAY    BE    TRANSFERRED. 

§  1044.  What  may  be  transferred. 

§  1045.  Possibility. 

§  1043.  Right  of  re-entry  can  be  transferred. 

§  1047.  Owner  ousted  of  possession  may  transfer. 

§  1044.  Property  of  any  kind  may  be  transfer- 
red, except  as  otherwise  provided  by  this  article. 

§  1045.  A  mere  possibility,  not  coupled  with  an 
interest,  cannot  be  transferred. 

§  1046.  A  right  of  re-entry,  or  of  repossession 
for  breach  of  condition  subsequent,  can  be  trans- 
ferred. 

§  1047.  Any  person  claiming  title  to  real  prop- 
erty in  the  adverse  possession  of  another  may 
transfer  it  with  the  same  effect  as  if  in  actual 
possession. 

See  post,  sec,  2921. 


5§  1052-1055  TRANSFER.  270 

ARTICLE   111. 

*  MODE  OF  TRANSFER. 

§  1052.  When  oral. 

§  1053.  Grant,  what. 

§  10o4.  Delivery  necessary. 

§  1055.  Date. 

§  1056.  Delivery  to  grantee  Is  necessarily  absolute. 

§  105/.  Delivery  in  escrow. 

§  1058.  Surrendering  or  canceling  grant  does  not  reconvey. 

§  1059.  Constructive  delivery. 

5  1060.  Gratuitous   grants   take   effect   immediately;    excep- 
tion.    (Repealed.) 

§  1052.  A  transfer  may  be  made  without  writ- 
ing, in  every  case  in  which  a  writing  is  not  ex- 
pressly required  by  statute. 

What  contracts  must  be  in  writing:  See  sec. 
1624,  post. 

Unhiwful  transfers:  See  sees.  1227  et  seq. 

Fraudulent  instruments  and  transfers:  See  sees. 
3439  et  seq.,  post. 

§  1053.  A  transfer  in  writing  is  called  a  grant, 
or  conveyance,  or  bill  of  sale.  The  term  "grant," 
in  this  and  the  next  two  articles,  includes  all  these 
instruments,  unless  it  is  specially  applied  to  real 
property.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  225.    In  effect  July  1,  1874.] 

Covenants  applied  from  a  "grant"  of  realty:  See 
sec.  1113,  post. 

§  1054.  A  grant  takes  effect,  so  as  to  vest  the 
interest  intended  to  be  transferred,  only  upon  its 
delivery  by  the  grantor. 

Constructive  delivery:  See  sec.  1059,  infra. 

Contract  in  writing  tal^es  effect  only  from  de- 
livery: See  post,  sec.  1626. 

§  1055.  A  grant  duly  executed  is  presumed  to 
have  been  delivered  at  its  date. 


271  TRANSFER.  §§  1056-1060 

S  1056.  A  graiit  cannot  be  delivered  to  the 
grantee  conditionally.  Delivery  to  him,  or  to  his 
agent  as  such,  is  necessarily  absolute,  and  the 
instrument  talies  effect  thereupon,  discharged  of 
any  condition  on  which  the  delivery  was  made. 

§  1057.  A  grant  may  be  deposited  by  the  grant- 
or with  a  third  person,  to  be  delivered  on  perform- 
ance of  a  condition,  and,  on  delivery  by  the  de- 
positary, it  will  take  effect.  While  in  the  posses- 
sion of  the  third  person,  and  subject  to  condition, 
it  is  called  an  escrow. 

§  1058.  Redelivering  a  grant  of  real  property 
to  the  grantor,  or  canceling  it,  does  not  operate 
to  retransfer  the  title. 

Requisites  of  transfer  of  estates  in  real  prop- 
erty: See  sec.  1091,  post. 

§  1059.  Though  a  grant  be  not  actually  deliv- 
ered into  the  possession  of  the  grantee,  it  is  yet 
to  be  deemed  constructively  delivered  in  the  fol- 
lowing cases: 

1.  Where  the  instrument  is,  by  the  agreement  of 
the  parties  at  the  time  of  execution,  understood  to 
be  delivered,  and  under  such  circumstances  that 
the  grantee  is  entitled  to  immediate  delivery;  or, 

2.  Where  it  is  delivered  to  a  stranger  for  the 
benefit  of  the  grantee,  a*Qd  his  assent  is  shown,  or 
may  be  presumed. 

§  1060.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  225.    In  effect  July  1,  1874.] 


§§  1066-1071  TRANSFER.  272 

ARTICLE  IV. 

INTERPRETATION   OP   GRANTS. 

§  1066.  Grants,  how  interpreted. 

§  1067.  Limitations,  how  controlled. 

§  1068.  Recitals,  when  resorted  to. 

§  1069.  Interpretation  against  grantor. 

§  1070.  Irreconcilable  provisions. 

§  1071.  Meaning  of  "heirs"  and  "issue,"  in  certain  remain- 
ders. 

§  1072.  Words  of  inheritance  unnecessary. 

§  1066.  Grants  are  to  be  interpreted  in  like 
manner  with  contracts  in  general,  except  so  far 
as  is  otherwise  provided  in  this  article. 

Interpretation  of  contracts:  See  post,  sees.  1636, 
1641. 

§  1067.  A  clear  and  distinct  limitation  in  a 
grant  is  not  controlled  by  other  words  less  clear 
and  distinct. 

§  1068.  If  the  operative  words  of  a  grant  are 
doubtful,  recourse  may  be  had  to  its  recitals  to 
assist  the  construction. 

§  1069.  A  grant  is  to  be  interpreted  in  favor 
of  the  grantee,  except  that  a  reservation  in  any 
grant,  and  every  grant  by  a  public  officer  or  body, 
as  such,  to  a  private  party  is  to  be  interpreted  in 
favor  of  the  grantor. 

§  1070.  If  several  parts  of  a  grant  are  absolute- 
ly irreconcilable,  the  former  part  prevails. 

§  1071.  Where  a  future  interest  is  limited  by  a 
grant  to  take  effect  on  the  death  of  any  person 
without  heirs,  or  heirs  of  his  body,  or  without  is- 
sue, or  in  equivalent  words,  such  words  must  be 
taken  to  mean  successors,  or  issue  living  at  the 
death  of  the  person  named  as  ancestor. 


273  TRANSFER.  §§  1072-1085 

§  1072,  Words  of  inheritance  or  succession  are 
not  requisite  to  transfer  a  fee  in  real  property. 

Words  of  inlieritance  unnecessary:  Stats.  1855, 
171,  sec.  3. 

A  fee-simple  is  presumed  to  be  intended  to  be 
conveyed,  unless  the  contrary  appears  from  the 
grant:  See  sec.  1105,  post. 

Devise  of  fee.— Word  "heirs"  not  necessary:  Sec. 
1329,  post. 

What  estate  a  fee:  See  sec.  762,  ante. 


ARTICLE  V. 

EFFECT  OF  TRANSFERS. 

§  1083.    What  title  passes. 

§  1084.    Incidents. 

§  10S5.    Grant  may  inure  to  benefit  of  stranger. 

§  1083.  A  transfer  vests  in  the  transferee  all 
the  actual  title  to  the  thing  transferred  which  the 
transferrer  then  has  unless  a  different  intention  is 
expressed  or  is  necessarily  implied. 

§  1084.  The  transfer  of  a  thing  transfers  also 
all  its  incidents,  unless  expressly  excepted;  but  the 
transfer  of  an  incident  to  a  thing  does  not  trans- 
fer the  thing  itself. 

See  sees.  1104,  3540,  post. 

§  1085.  A  present  interest,  and  the  benefit  of 
a  condition  or  covenant  respecting  property,  may 
be  talien  by  any  natural  person  under  a  grant, 
although  not  named  a  party  thereto. 


§§  1091,  1092  TRANSFER.  274 

CHAPTER  II. 

TRANSFER  OP  REAL  PROPERTY. 

Article  I.     Mode  of  Transfer,   §§  1091-1095. 
II.    Effect  of  Transfer,   §§  1104-1115. 

ARTICLE  I. 

MODE    OF    TRANSFER. 

§  1091.     Requisites  for  transfer  of  certain  estates. 
§  1092.    Form  of  grant. 

§  1093.    Grant  by  married  women,  how  acknowledged. 
§  1094.    Power  of  attorney  of  married  woman,  how  acknowl- 
edged. 
§  1095.    Attorney  in  fact,  how  must  execute  for  principal. 

§  1091.  An  estate  in  real  property,  other  than 
an  estate  at  will  or  for  a  term  not  exceeding  one 
year,  can  be  transferred  only  by  operation  of  law, 
or  by  an  instrument  in  writing,  subscribed  by  the 
party  disposing  of  the  same,  or  by  his  agent  there- 
unto authorized  by  writing. 

Transfer  of  realty:  Code  Civ.  Proc,  sees.  1971- 
1974. 

Requisites  of  transfer  of  real  property:  See  cor- 
responding section  in  Code  of  Civil  Procedure,  sec. 
1971. 

See  further  sec.  1624,  subd.  5. 

Conveyances  by  person  whose  name  changed: 
See  post,  Appendix,  p.  765. 

§  1092.  A  grant  of  an  estate  in  real  property 
may  be  made  in  substance  as  follows: 

"I,  A  B,  grant  to  C  D  all  that  real  property  sit- 
uated in  (insert  name  of  county)  County,  State  of 
California,  bounded  (or  described)  as  follows: 
(here  insert  description,  or  if  the  land  sought  to 
be  conveyed  has  a  descriptive  name,  it  may  be  de- 
scribed by  the  name,  as,  for  instance,  'The  Norris 
Ranch.') 

"Witness  my  hand  this  (insert  day)  day  of  (in- 
sert month),  18 — . 

"A  B." 


275  TRANSFER.  §§  1093-1095 

See  Act  of  March  11,  1874,  Conveyancing  by  per- 
son who  has  changed  his  or  her  name,  Appendix, 
p.  479. 

See  sec.  1614,  post. 

§  1093.  A  grant  or  conveyance  of  real  proper- 
ty made  by  a  married  woman  may  be  made,  exe- 
cuted, and  acknowledged  in  the  same  manner  and 
has  the  same  effect  as  if  she  were  unmarried. 
[Amendment  approved  March  14,  1895;  Stats. 
1895,  p.  47.    In  effect  immediately.] 

Conveyance  by  married  women:  See  sees.  1186, 
1187,  and  1191,  post. 

§  1094.  A  married  woman  may  mal^e,  execute, 
and  revolie  powers  of  attorney  for  the  sale,  con- 
veyance, or  incumbrance  of  her  real  or  personal 
estate,  which  shall  have  the  same  effect  as  if  she 
were  unmarried,  and  may  be  aclinowledged  in  the 
same  manner  as  a  grant  of  real  property. 
I  Amendment  approved  March  9,  1895;  Stats.  1895. 
p.  35.    In  effect  in  sixty  days.] 

§  1095.  When  an  attorney  in  fact  executes  an 
instrument  transferring  an  estate  in  real  property, 
he  must  subscribe  the  name  of  his  principal  to  it, 
;ind  his  own  name  as  attorney  in  fact. 


§§  1104-U06  TRANSFER.  276 

ARTICJ.E  II. 

EFFECT    OF   TRANSFER. 

§  1104.  What  easements  pass  witti  property. 

§  1105.  When  fee  simple  title  is  presumed  to  pass. 

§  1106.  Subsequently  acquired  title  passes  by  operation  of 

law. 

§  1107.  Grant,   how  far  conclusive  on  purchasers. 

§  1108.  Conveyances  by  owner  for  life  or  for  years. 

§  1109.  Grant  made   on   condition  subsequent. 

§  1110.  Grant  on  condition   precedent. 

§  1111.  Grant  of  rents,   reversions,  and  remainders. 

§  1112.  Boundary  by  highway,  what  passes. 

§  1113.  Implied  covenants. 

§  1114.  What  the  term  "incumbrances"  embraces. 

§  1115.  Lineal  and  collateral  warranties  abolished. 

§  1104.  A  transfer  of  real  property  passes  all 
easements  attached  thereto,  and  creates  in  favor 
thereof  an  easement  to  use  other  real  property  of 
the  person  whose  estate  is  transferred  in  the  same 
manner  and  to  the  same  extent  as  such  property 
was  obviously  and  permanently  used  by  the  per- 
son whose  estate  is  transferred,  for  the  benefit 
thereof,  at  the  time  when  the  transfer  was  agreed 
upon  or  completed. 

Transfer  carries  easements:  See  the  general  sub- 
ject of  easements,  sec.  801,  ante. 

Transfer  of  a  thing  carries  its  incidents:  Sec. 
1084,  ante. 

§  1105.  A  fee  simple  title  is  presumed  to  be 
intended  to  pass  by  a  grant  of  real  property,  un- 
less it  appears  from  the  grant  that  a  lesser  estate 
was  intended. 

See  sec.  1072,  ante. 

§  1106.  Where  a  person  purports  by  proper  in- 
strument to  grant  real  property  in  fee  simple,  and 
subsequently  acquires  any  title,  or  claim  of  title 
thereto,  the  same  passes  by  operation  of  law  to 
the  grantee,  or  his  successors. 


277  TRANSFER.  §§  U07-1111 

§  1107.  Every  grant  of  an  estate  in  real  prop- 
erty is  conclusive  against  the  grantor,  also  against 
every  one  subsequently  claiming  under  liim,  ex- 
cept a  purchaser  or  incumbrancer  who  in  good 
faith  and  for  a  valuable  consideration  acquires  a 
title  or  lien  by  an  instrument  that  is  first  duly  re- 
corded. 

§  1108.  A  grant  made  by  the  owner  of  an  es- 
tate for  life  or  years,  purporting  to  transfer  a 
greater  estate  than  he  could  lawfully  transfer, 
does  not  worli  a  forfeiture  of  his  estate,  but  passes 
to  the  grantee  all  the  estate  which  the  grantor 
could  lawfully  transfer. 

§  1109.  Where  a  grant  is  made  upon  condition 
subsequent,  and  is  subsequently  defeated  by  the 
nonperformance  of  the  condition,  the  person  oth- 
erwise entitled  to  hold  under  the  grant  must  re- 
convey  the  property  to  the  grantor  or  his  succes- 
sors, by  grant,  duly  acknowledged  for  record. 

Conditions:  See  sees.  707  et  seq. 

Recording  instruments:  See  sec.  1158,  post. 

Unrecorded  deed  void  as  to  subsequent  bona  fide 
purchasers:  Sec.  1214,  post;  sec.  1107,  ante. 

§  1110.  An  instrument  purporting  to  be  a  grant 
of  real  property,  to  take  effect  upon  condition 
precedent,  passes  the  estate  upon  the  performance 
of  the  condition.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  p.  225.  In  effect 
July  1,  1874.] 

§  1111.  Grants  of  rents  or  of  reversions  or  of 
remainders  are  good  and  effectual  without  attorn- 
ments of  the  tenants;  but  no  tenant  who,  before 
notice  of  the  grant,  shall  have  paid  rent  to  the 
grantor,  must  suffer  any  damage  thereby. 

See  ante,  sec.  821. 

Civ.    Code.— 24. 


§§  1112-1115  TRANSFER.  278 

§  1112.  A  transfer  of  land,  bounded  by  a  high- 
way, passes  the  title  of  the  person  whose  estate 
is  transferred  to  the  soil  of  the  highway  in  front 
to  the  center  thereof,  unless  a  different  intent  ap- 
pears from  the  grant.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  225.  In  ef- 
fect July  1,  1874.] 

See  ante.  sec.  831. 

§  1113.  From  the  use  of  the  word  "grant"  in 
any  conveyance  by  which  an  estate  of  inheritance 
or  fee  simple  is  to  be  passed,  the  following  cove- 
nants, and  none  other,  on  the  part  of  the  grantor 
for  himself  and  his  heirs  to  the  grantee,  his  heirs, 
and  assigns,  are  implied,  unless  restrained  by  ex- 
press terms  contained  in  such  conveyance: 

1.  That  previous  to  the  time  of  the  execution  of 
such  conveyance,  the  grantor  has  not  conveyed 
the  same  estate,  or  any  right,  title,  or  interest 
therein,  to  any  person  other  than  the  grantee; 

2.  That  such  estate  is  at  the  time  of  the  exe- 
cution of  such  conveyance  free  from  incumbrances 
done,  made,  or  suffered  by  the  grantor,  or  any  per- 
son claiming  under  him. 

Such  covenants  may  be  sued  upon  in  the  same 
manner  as  if  they  had  been  expressly  inserted  in 
the  conveyance. 

Stats.  1855,  171,  sec.  9. 

Covenants  running  with  land:  See  sees.  1460- 
1407,  post. 

The  "usual  covenants":  See  sec.  1733,  post. 

§  1114.  The  term  "incumbrances"  includes 
taxes,  assessments,  and  all  liens  upon  real  prop- 
erty. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  225.  In  effect  July  1, 
1874.] 

§  1115.  Lineal  and  collateral  warranties,  with 
all  their  incidents,  are  abolished;  but  the  heirs  and 


279  TRANSFER.  §§  1135-1140 

devisees  of  every  person  who  has  made  any  cov- 
enant or  agreement  in  reference  to  the  title  of, 
in,  or  to  any  real  property,  are  answerable  upon 
such  covenant  or  agreement  to  the  extent  of  the 
land  descended  or  devised  to  them,  in  the  cases 
and  in  the  manner  prescribed  by  law. 

CHAPTER   III. 

TRANSFER  OF  PERSONAL  PROPERTY. 

Article  I.    Mode  of  Transfer,   §§  1135-1136. 

II.    What  operates   as  a   Transfer,    §§   1140-1142. 
III.     Gifts,  §§  1146-1153. 

ARTICLE  I. 

MODE  OF  TRANSFER. 

§  1135.    When  must  be  in  writing. 
§  1136.     Transfer  by  sale,    &c. 

§  1135.  An  interest  in  a  ship,  or  in  an  existing 
trust,  can  be  transferred  only  by  operation  of  law, 
or  by  a  written  instrument,  subscribed  by  the 
person  making  the  transfer,  or  by  his  agent. 

See  sec.  3440,  post. 

§  1136.  The  mode  of  transferring  other  per- 
sonal property  by  sale  is  regulated  by  the  title  on 
that  subject,  in  Division  third  of  this  Code. 

Transfer  of  obligations:  See  sees.  1457  et  seq. 

Sales  of  property  generally:  See  sees.  1721,  post, 
et  sea. 

ARTICLE  II. 

WHAT   OPERATES   AS   A    TRANSFER. 

§  1140.    Transfer  of  title  under  sale. 

§  1141.    Transfer    of    title    under    executory    agreement    for 

sale. 
§  1142.    When  buyer  acquires  better  title  than  seller  has. 

§  1140.  The  title  to  personal  property,  sold  or 
exchanged  passes  to  the  buyer  whenever  the  par 


§§  U41,  1142  TRANSFER.  280 

ties  agree  upon  a  present  transfer,  and  the  thing 
itself  is  identified,  whether  it  is  separated  from 
other  things  or  not. 

Validity  of  sale  of  personal  property:  See  sees. 
1739,  post  et  seq.;  and  sec.  1G24,  post. 

Delivery:  See  sees.  1753  et  seq.,  and  sec.  1054, 
ante. 

Agreement  to  sell  and  buy  defined:  See  sec. 
1729,  post. 

§  1141.  Title  is  transferred  by  an  executory 
agreement  for  the  sale  or  exchange  of  personal 
property  only  when  the  buyer  has  accepted  the 
thing,  or  when  the  seller  has  completed  it,  pre- 
pared it  for  delivery,  and  offered  it  to  the  buyer, 
with  intent  to  transfer  the  title  thereto,  in  the 
manner  prescribed  by  the  chapter  upon  Offer  of 
Performance. 

Offer  of  performance:  See  sees.  1485,  post,  et 
seq. 

§  1142.  Where  the  possession  of  personal  prop- 
erty, together  with  a  power  to  dispose  thereof,  is 
transferred  by  its  owner  to  another  person,  an 
executed  sale  by  the  latter,  while  in  possession, 
to  a  buyer  in  good  faith  and  in  the  ordinary 
course  of  business,  for  value,  transfers  to  such 
buyer  the  title  of  the  former  owner,  though  he 
may  be  entitled  to  rescind,  and  does  rescind,  the 
transfer  made  by  him. 

Sales  by  factor:  See  post,  sec.  2369. 


281  TRANSFER.  §§  U46-1151 

ARTICLE   III. 

GIFTS. 

§  1146.  Gifts    defined. 

§  1147.  Gift,   how  made. 

§  1148.  Gift  not  revocable. 

§  1149.  Gift  in  view   of  death,   what. 

§  1150.  "^hen  gift  presumed  to  be  in  view  of  death. 

§  1151.  Revocation  of  gift  in  view  of  death. 

§  1152.  Effect  of  will  upon  gift. 

§  1153.  When  treated  as  legacy. 

§  1146.  A  gift  is  a  transfer  of  personal  prop- 
erty, made  voluntarily,  and  without  consideration. 

§  1147.  A  verbal  gift  is  not  valid,  unless  the 
means  of  obtaining  possession  and  control  of  the 
thing  are  given,  nor,  if  it  is  capable  of  delivery, 
unless  there  is  an  actual  or  symbolical  delivery  of 
the  thing  to  the  donee. 

§  1148.    A  gift,  other  than  a  gift  in  view  of 
death,  cannot  be  revoked  by  the  giver. 
Revoking  gifts  mortis  causa:  Sec.  1151,  infra. 

§  1149.  A  gift  in  view  of  death  is  one  which 
is  made  in  contemplation,  fear,  or  peril  of  death, 
and  with  intent  that  it  shall  take  effect  only  in 
case  of  the  death  of  the  giver. 

Revoking  gift  in  view  of  death:  See  sec.  1151, 
infra, 

§  1150.  A  gift  made  during  the  last  illness  of 
the  giver,  or  under  circumstances  which  would 
naturally  impress  him  with  an  expectation  of 
speedy  death,  is  presumed  to  be  a  gift  in  view  of 
death! 

§  1151.  A  gift  in  view  of  death  may  be  re- 
voked by  the  giver  at  any  time,  and  is  revoked  by 
his  recoverv  from  the  illness,  or  escape  from  the 


§§  1152,  1153  TRANSFER.  282 

peril,  under  the  presence  of  which  it  was  made, 
or  by  the  occurrence  of  any  event  which  would 
operate  as  a  revocation  of  a  will  made  at  the  same 
time;  but  when  the  gift  has  been  delivered  to  the 
donee,  the  rights  of  a  bona  fide  purchaser  from 
the  donee  before  the  revocation,  shall  not  be  af- 
fected by  the  revocation.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  226.  In 
effect  July  1,  1874.] 

Revoking  gift  causa  mortis:  See  for  the  various 
conditions  which  will  defeat  a  gift  made  in  view 
of  death,  the  note  to  sec.  1149,  supra. 

Gift  inter  vivos  not  revocable:  See  sec.  1148, 
supra. 

§  1152.  A  gift  in  view  of  death  is  not  affected 
by  a  previous  will;  nor  by  a  subsequent  will,  un- 
less it  expresses  an  intention  to  revoke  the  gift. 

§  1153.  A  gift  in  view  of  death  must  be  treat- 
ed as  a  legacy,  so  far  as  relates  only  to  the  cred- 
itors of  the  giver. 


2ivJ  TRANSFER-  S  USS 

CHAPTER  IV. 

RECORDING  TRANSFERS. 

Article  I.     What  may  be  recorded,  §§  U58-1165. 
II.     Mode  of  Recording,  §§  1169-1173. 

III.  Proof  and  Acknowledgments   of  Instruments,   §§ 

1180-1207. 

IV.  Effect    of    Recording    or    of    the    Want    thereof, 

§§    1213-1217. 

ARTICLE  I. 
WHAT  MAY  BE  RECORDED. 

§  1158.     What  may  be  recorded. 

§  1159.  Judgm.ents  may  be  recorded  without  acknowledg- 
ment. 

I  1160.  Letters  patent  may  be  recorded  without  ac- 
knowledgment. 

5  1161.    Instruments  must  be  acknowledged,   except,   &c. 

.?  1162.     Same. 

^  1163.  Instruments  executed  under  power  of  attorney  not 
to  be  recorded  until  power  is  filed.     (Repealed.) 

§  1154.     Transfers  in  trust,  &c. 

§  1165.    Fees  of  recorder  to  be  indorsed. 

§  1158.  Any  instrument  or  judgment  affecting 
the  title  to  or  possession  of  real  property  may  be 
recorded  under  this  chapter. 

Recording  of  conveyance  by  one  whose  name 
changed:  See  post,  Appendix,  p. 

Compare  with  section  1215.  as  indicating  what 
may  be  recorded. 

Place  of  recording:  See  sec.  1169,  post. 

Execution  of  instrument  and  acknowledgment 
to  entitle  to  be  recorded:  See  sec.  1161,  infra,  and 
sees.  IISO  et  sea. 

Proceedings  to  correct  imperfect  acknowledg- 
ment: Sees.  1202.  1203,  post. 

Bona  fide  purchasers  without  notice  whose  deeds 
are  first  recorded  take  precedence  over  prior 
grantee:  Sec.  1107,  ante;  sec.  1214,  post. 


§§  U59,  1160  TRANSFER.  284 

Instrument,  when  deemed  recorded:  See  sec. 
1170,  post. 

Effect  of  recording,  or  want  thereof:  See  sees. 
1213,  post,  et  seq. 

§  1159.  Judgments  affecting  the  title  to  or  pos- 
session of  real  property  authenticated  by  the  cer- 
tificate of  the  clerli  of  the  court  in  which  such 
judgments  were  rendered  (and  notices  of  location 
of  mining  claims),  may  be  recorded  without  ac- 
knowledgment, certificate  of  acknowledgment,  or 
further  proof.  The  record  of  all  notices  of  loca- 
tion of  mining  claims  heretofore  made  in  the 
proper  office  without  acknowledgment,  or  certifi- 
cate of  aclvuowledgment,  or  other  proof  shall 
have  the  same  force  and  effect  for  all  purposes  as 
if  the  same  had  been  duly  acknowledged,  or 
proved  and  certified  as  required  by  law.  Affida- 
vits showing  work  or  posting  of  notices  upon 
mining  claims  may  also  be  recorded  in  the  Re- 
corder's office  of  the  county,  where  such  mining 
claims  are  situated.  [Amendment  approved 
March  9,  1892;  Stats.  1892,  ch.  XCIV.] 

Recorder  must  file  judgments:  Polit.  Code,  sec. 
4238. 

§  1160.  Letters  patent  from  the  United  States 
or  from  the  State  of  California,  executed  and  au- 
thenticated pursuant  to  existing  law,  may  be  re- 
corded without  acknowledgment  or  further  proof; 
and  where  letters  patent  have  been  lost,  or  are 
beyond  the  control  of  any  party  deraigning  title 
therefrom,  or  for  any  reason  they  remain  unre- 
corded, any  person  claiming  title  thereunder  may 
cause  a  transcript  of  the  copy  of  such  letters  pat- 
ent kept  by  the  government  issuing  the  same,  duly 
certified  by  the  officer  or  individual  having  lawful 
custody  of  such  copy,  to  be  recorded  in  lieu  of  the 
original;  and  such  recorded  copy  shall  have  prima 


2So  TRANSFER.  §§  U61-1164 

facie  the  same  force  and  effect  as  the  original,  for 
title  or  for  evidence,  until  said  original  letters  pat- 
ent be  recorded,  [Amendment  approved  April  1, 
1878;  Amendments  1877-8,  p.  85.  In  effect  sixtieth 
day  after  passage.] 

§  1161.  Before  an  instrument  can  be  recorded, 
unless  it  belongs  to  the  class  provided  for  in  either 
sections  eleven  hundred  and  fifty-nine,  eleven  hun- 
dred and  sixty,  twelve  hundred  and  two,  or  twelve 
hundred  and  three,  its  execution  must  be  acknowl- 
edged by  the  person  executing  it,  or  if  executed 
by  a  corporation,  by  its  president  or  secretary,  or 
proved  by  a  subscribing  witness,  or  as  provided 
in  sections  eleven  hundred  and  ninety-eight  and 
eleven  hundred  and  ninety-nine,  and  the  acknowl- 
edgment or  proof  certified  in  the  manner  prescrib- 
ed by  Article  III  of  this  chapter.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4,  p. 
226.    In  effect  July  1,  1874.] 

§  1162.  An  instrument,  proved  and  certified 
pursuant  to  sections  1198  and  1199,  may  be  re- 
corded in  the  proper  office  if  the  original  is  at  the 
same  time  deposited  therein  to  remain  for  public 
inspection,  but  not  otherwise. 

§  1163.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  226.    In  effect  July  1,  1874.] 

§  1164.  Transfers  of  property  in  trust  for  the 
benefit  of  creditors,  and  transfers  or  liens  on  prop- 
erty by  way  of  mortgage,  are  required  to  be  re- 
corded in  the  cases  specified  in  the  titles  on  the 
special  relation  of  Debtor  and  Creditor,  and  the 
chapter  on  Mortgages  respectively. 

Special  relations  of  debtor  and  creditor:  See 
post,  sees.  3429  et  sea. 

Mortgages:  See  sees.  2920  et  seq. 


§§  1165-1172  TRANSFER.  286 

§  1165.  The  recorder  must  in  all  cases  indorse 
the  amount  of  his  fee  for  recordation  on  the  in- 
strument recorded.  [New  section  approved  March 
11,  1874;  Amendments  1873-4,  p.  274.  In  effect 
sixty  days  after  passage.] 

Recorders:  Polit.  Code,  sees.  4235  et  seq. 


ARTICLE  II. 

MODE  OF  RECORDING. 

§  1169.  In  what  office. 

§  1170.  Instrument,    when    deemed    recorded. 

§  1171.  Books  of  record. 

§  1172.  Duties  of  recorder. 

§  1173.  Transfer   of  vessels. 

§  1169,  Instruments  entitled  to  be  recorded 
must  be  recorded  by  the  county  recorder  of  th« 
county  in  which  the  real  property  affected  there- 
by is  situated. 

§  1170.  An  instrument  is  deemed  to  be  record- 
ed, when,  being  duly  acl^nowledged  or  proved, 
and  certified,  it  is  deposited  in  the  recorder's  office 
with  the  proper  officer  for  record.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  p. 
226.    In  effect  July  1,  1874.] 

Recording:  See,  for  general  consideration  of  the 
subject,  sec.  1158,  ante, 

§  1171.  Grants,  absolute  in  terms,  are  to  be  re- 
corded in  one  set  of  boolis,  and  mortgages  in  an- 
other. 

§  1172.  The  duties  of  county  recorders,  in  re- 
spect to  recording  instruments,  are  prescribed  by 
the  Political  Code, 

Recorders:  See  Polit,  Code,  sees,  4235  et  seq. 


287  TRANSFER  §§  1173-U80 

§  1173.  The  mode  of  recoiding  transfers  of 
ships  registered  under  the  laws  of  the  United 
States  is  regulated  by  acts  of  Congress. 

See  U.  S.  Rev.  Stats.,  sees.  4131  et  seq. 

ARTICLE  III. 

PROOF   AND  ACKNOWLEDGMENT   OF   INSTRUMENTS. 

§  1180.    By  whom  acknowledgments  may  be  taken  in  this 

State. 
§  llSl.    Same. 

§  1182.    By  whom  taken  without  the  State. 
§  1183.     By  whom   taken   without   the  United    States. 
.§  1184.    Deputy   can   take  acknowledgment. 
§  1185.     Requisites  for  acknowledgment. 
§  1186.    Acknowledgment  by  married  women. 
§  1187.    Conveyance  by  married  woman. 
§  1188.     Officer  must  indorse  certificate. 
§  1189.    General   form  of  certificate. 
§  1190.     Form  of  acknowledgment  by  corporation, 
§  1191.    Form  of  certificate  of  acknowledgment  by  married 

women. 
§  1192.    Form  of  certificate  of  acknowledgment  by  attorney 

in  fact. 
§  1193.    Officers  must  affix  their  signatures. 
§  1194.    Certificate  of  authority  of  justices  in  certain  cases. 
§  1195.    Proof  of  execution,  how  made. 
§  1196.    Witness  must  be  personally  known  to  officer. 
§  1197.    Witness  must  prove,  what. 
§  1198.    Handwriting  may  be  proved,  when. 
§  1199.    Evidence  must  prove,  what. 
§  1200.     Certificate  of  proof. 

§  1201.     Officers  authorized  to  do  certain  things. 
§  1202.    When  instrument  is  improperly  certified,  party  may 

have   action   to    correct   error. 
§  1203.    In  certain  cases  parties  interested  may  obtain  judg- 
ment of  proof  of  an  instrument. 
§  1204.     Effect  of  judgment  in  such  action. 
§  1205.     Conveyances    heretofore    made    to    be    governed    by 

then    existing   laws. 
§  1206.    Recording,  and  as  evidence,  to  be  governed  by  then 

existing  laws. 
§  1207,     Certified  copies  as  evidence.     Records,   what  notice 

deemed  from, 

§  1180,  The  proof  or  acknowledgment  of  an  in- 
strument may  be  made  at  any  place  witliin  this 
State  before  a  justice  or  clerk  of  the   Supreme 


§§  1181-1183  TRANSFER.  288 

Court  or  a  judge  of  the  Superior  Court.  [Amend- 
ment approved  April  3,  1880;  Amendments  1880,  p. 
2.    In  effect  immediately.] 

Act  legalizing  defective  aclinowledgments:  See 
post,  Appendix,  pp.  702  et  seq. 

Act  to  legalize  acliuowledgments  taken  by  court 
commissioners:  See  post,  Appendix,  p.  702. 

§  1181.  The  proof  or  acl^nowledgment  of  an  in- 
strument may  be  made  in  this  state,  within  the 
city,  city  and  county,  county,  or  district  for  which 
the  officer  was  elected  or  appointed,  before  either, 

1.  A  clerk  of  a  court  of  record;  or, 

2.  A  county  recorder;  or, 

3.  A  court  commissioner;  or, 

4.  A  notary  public;  or, 

5.  A  justice  of  the  peace.  [Amendment  approv- 
ed March  31,  1891;  Stats.  1891,  p.  214.] 

Act  to  legalize  acknowledgments  taken  by  court 
commissioners:  See  post.  Appendix,  p. 
Acknowledgment  by  deputy:  See  sec.  1184,  post. 

§  1182.  The  proof  or  acknowledgment  of  an 
instrument  may  be  made  without  this  State,  but 
within  the  United  States,  and  within  the  jurisdic- 
tion of  the  officer,  before  either: 

1.  A  justice,  judge,  or  clerk  of  any  court  of 
record  of  the  United  States;  or, 

2.  A  justice,  judge,  or  clerk  of  any  court  of  rec- 
ord of  any  State;  or, 

3.  A  commissioner  appointed  by  the  governor  of 
this  State  for  that  purpose;  or, 

4.  A  notary  public;  or, 

5.  Any  other  officer  of  the  State  where  the  ac- 
knowledgment is  made  authorized  by  its  laws  to 
talve  such  proof  or  acknowledgment. 

The  word  "state"  includes  "territory":  See  sec. 
14,  subd.  12. 

§  1183.    The   proof   or   acknowledgment  of   an 


289  TRANSFER.  §§  1184,  1185 

instrument    may    be    made   without     the     United 
States,  before  either: 

1.  A  minister,  commissioner,  or  charge  d'affaires 
of  the  United  States,  resident  and  accredited  in 
the  country  where  the  proof  or  acknowledgment 
is  made;  or. 

2.  A  consul,  vice-consul,  or  consular  agent  of 
the  United  States,  resident  in  the  country  where 
the  proof  or  acknowledgment  is  made;  or, 

3.  A  judge  of  a  court  of  record  of  the  country 
where  the  proof  or  acknowledgment  is  made;  or, 

4.  Commissioners  appointed  for  such  purposes 
by  the  governor  of  the  State,  pursuant  to  special 
statutes;  or. 

5.  A  notary  public.  [Amendment  approved 
March  30,  1874;  Amendment  1873-4,  p.  227.  In  ef- 
fect July  1,  1874.] 

§  1184.  When  any  of  the  officers  mentioned  in 
the  four  preceding  sections  are  authorized  by  law 
to  appoint  a  deputy,  the  acknowledgment  or  proof 
may  be  taken  by  such  deputy,  in  the  name  of  his 
principal. 

§  1185.  The  acknowledgment  of  an  instru- 
ment must  not  be  taken,  unless  the  officer  taking 
it  knows,  or  has  satisfactory  evidence,  on  the 
oath  or  affirmation  of  a  credible  witness,  that  the 
person  making  such  acknowledgment  is  the  indi- 
vidual who  is  described  in  and  who  executed  the 
instrument;  or,  if  executed  by  a  corporation,  that 
the  person  making  such  acknowledgment  is  the 
president  or  secretary  of  such  corporation. 

Acknowledgments  of  married  women:  See  next 
section. 

The  official  character  of  the  certifying  officer 
should  appear  from  the  certificate:  Sec.  1188,  post. 

Authentication  of  signature:  See  sec.  1193.  post. 

Correcting  certificate:  See  sec.  1202.  post. 

Civ.    Code.— 25. 


§§  1186-11S9  TRANEFER.  290 

§  1186.  The  acknowledgment  of  a  married  wo- 
man to  an  instrument  purporting  to  be  executed 
by  her,  must  not  be  talien,  unless  she  is  made 
acquainted  by  the  officer  witli  the  contents  of  the 
instrument  on  an  examination  without  the  hear- 
ing of  her  husi3and;  nor  certified,  unless  she  there- 
upon aclcuowledges  to  the  officer  that  she  executed 
the  instrument  and  that  she  does  not  wish  to  re- 
tract such  execution. 

§  1187.  A  conveyance  by  a  married  woman  has 
the  same  effect  as  if  she  were  unmarried,  and  may 
be  acliuowledged  in  the  same  manner.  [Amend- 
ment, approved  March  19,  1891;  Stats.  1891,  p.  137. 
In  effect  immediatel5\] 

§  1188.  An  officer  taking  the  acknowledgment 
of  an  instrument  must  indorse  thereon,  or  attach 
thereto,  a  certificate  substantially  in  the  forms 
hereinafter  prescribed.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4.  p.  227.  In 
effect  July  1,  1874.] 

Official  character:  See  Code  Civ.  Proc,  sec. 
1963. 

§  1189.  The  certificate  of  acknowledgment,  un- 
less it  is  otherwise  in  this  article  provided,  must 
be  substantially  in  the  following  form:  "State  of 

.   County  of  .   ss.     On  this  

day  of ,  in  the    year  ,  before    me 

(here  insert  name  and  quality  of  the  officer),  per- 
sonally appeared ,  known  to  me  (or  proved 

to  me  on  the  oath  of  )  to  be  the  person 

whose  name  is  subscribed  to  the  within  instm- 
ment,  and  acl^nowledged  that  he  (she  or  they)  ex- 
ecuted the  same."  Provided,  however,  that  any 
acknowledgment  taken  without  this  State  in  ac- 
cordance with  the  laws  of  the  place  where  the  ac- 


L'91  TRANSFER.  §§  1190-U92 

knowledgment  is  made,  shall  be  sufficient  in  this 
State;  and  provided  further,  that  the  certificate 
of  the  clerk  of  a  court  of  record  of  the  county  or 
district  where  such  acknowledgment  is  taken, 
that  the  officer  certifying  to  the  same  is  authorized 
by  law  so  to  do,  and  that  the  signature  of  the 
said  officer  to  such  certificate  is  his  true  and  gen- 
uine signature,  and  that  such  acknowledgment  is 
taken  in  accordance  with  the  laws  of  the  place 
where  the  same  is  made,  shall  be  prima  facie  evi- 
dence of  the  facts  stated  in  the  certificate  of  said 
clerk.     [Approved  February  26,  1897,  ch.  XL VI.] 

This  section  was  also  amended  in  March,  1891; 
Stats.  1891,  p.  137. 

§  1190.    The  certificate  of  acknowledgment  of 
an  instrument  executed  by  a  corporation  must  be 
substantially  in  the  following  forin: 
State  of , 


County  of 


On  this  day  of ,  in  the  year ,  before 

me  [here  insert  the  name  and  quality  of  the  offi- 
cer], personally  appeared  ,  known  to  me  [or 

proved  to  me  on  the  oath  of ]  to  be  the  presi- 
dent [or  the  secretary]  of  the  corporation  that  exe- 
cuted the  within  instrument,  and  acknowledged  to 
me  that  such  corporation  executed  the  same. 

§  1191.  [Repealed  March  19,  1891;  Stats.  1891, 
p.  137.    In  effect  immediately.] 

§  1192.  The  certificate  of  acknowledgment  by 
an  attorney  in  fact  must  be  substantially  in  the 
following  form: 

State  of .  1 

County  of  .  f 

On  this day  of ,  in  the  year  ,  before 

me  [here  insert  the  name  and  quality  of  the  offi- 
cer], personally  appeared  ,  known  to  me   [or 


§§  11!)3-1196  TRANSFER.  292 

proved  to  me  on  the  oath  of  ]  to  be  the  per- 
son whose  name  is  subscribed  to  the  within  instru- 
ment as*the  attorney  in  fact  of ,  and  aclinowl- 

edged  to  me  that  he  subscribed  the  name  of  

thereto  as  principal,  and  his  own  name  as  attor- 
ney- in  fact. 

^  1193.  Officers  talking  and  certifying  ac- 
Ivnowlodgments  or  proof  of  instruments  for  re- 
cord, must  authenticate  their  certificates  by  af- 
fixing thereto  their  signatures,  followed  by  the 
names  of  their  offices:  also,  their  seals  of  office, 
if  by  the  laws  of  the  State  or  country  where  the 
ackno^^  ledgment  or  proof  is  taken,  or  by  author- 
ity of  which  they  are  acting,  they  are  required  to 
have  official  seals. 

§  1194.  The  certificate  of  proof  or  acl^nowledg- 
meut,  if  made  before  a  justice  of  the  peace,  when 
used  in  any  county  other  than  that  in  which  he 
resides,  must  be  accompanied  by  a  certificate  un- 
der the  hand  and  seal  of  the  clerk  of  the  county 
in  which  the  justice  resides,  setting  forth  that 
such  justice,  at  the  time  of  taking  such  proof  or 
acknowledgment,  Avas  authorized  to  take  the  same, 
and  that  the  clerk  is  acquainted  with  his  hand- 
writing, and  believes  that  the  signature  to  the 
original  certificate  is  genuine. 

§  1195.  Proof  of  the  execution  of  an  instru- 
ment, when  not  acknowledged,  may  be  made 
either: 

1.  By  the  party  executing  it,  or  either  of  them; 
or. 

2.  By  a  subscribing  Avitness;  or. 

3.  By  other  witnesses,  in  cases  mentioned  in 
section  1198. 

§  1196.  If  by  a  subscribing  witness,  such  wit- 
ness must  be  personally  known  to  the  officer  tak- 


2S3  TRANSFER.  §§  U97-U&9 

ing  the  proof  to  be  the  person  whose  name  is 
subscribed  to  the  instrument  as  a  witness  or  must 
be  proved  to  be  such  by  the  oath  of  a  "Credible 
witness. 

§  1197.  The  subscribing  witness  must  prove 
that  the  person  whose  name  is  subscribed  to  the 
instrument  as  a  party  is  the  person  described  in 
it,  and  that  such  person  executed  it,  and  that  the 
witness  subscribed  his  name  thereto  as  a  witness. 

§  1198.  The  execution  of  an  instrument  may  be 
established  by  proof  of  the  handwriting  of  the 
party  and  of  a  subscribing  witness,  if  there  is  one. 
in  the  following  cases: 

1.  When  the  parties  and  all  the  subscribing 
Avitnesses  are  dead;  or. 

2.  AYhen  the  parties  and  all  the  subscribing 
witnesses  are  nonresidents  of  the  State;  or, 

3.  When  the  place  of  their  residence  is  un- 
known to  the  party  desiring  the  proof,  and  can- 
not be  ascertained  by  the  exercise  of  due  dili- 
gence; or, 

4.  When  the  subscribing  witness  conceals  him- 
self, or  cannot  be  found  by  the  officer  by  the  ex- 
ercise of  due  diligence  in  attempting  to  serve  the 
subpoena  or  attachment;  or, 

5.  In  case  of  the  continued  failure  or  refusal 
of  the  witness  to  testify,  for  the  space  of  one  hour 
after  his  appearance. 

§  1199.  The  evidence  taken  under  the  preced- 
ing section  must  satisfactorily  prove  to  the  offi- 
cer the  following  facts: 

1.  The  existence  of  one  or  more  of  the  condi- 
tions mentioned  therein;  and, 

2.  That  the  witness  testifying  knew  the  person 
whose  name  purports  to  be  subscribed  to  the  in- 
strument as  a  party,  and  is  well  acquainted  with 
liis  signature,  and  that  it  is  genuine:  and. 


§§  1200-1203  TRANSFER.  294 

3.  That  the  witness  testifying  personally  knew 
the  person  who  subscribed  the  instrument  as  a 
witness,  and  is  well  acquainted  with  his  signa- 
ture, and  that  it  is  genuine;  and, 

4.  The  place  of  residence  of  the  witness. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  227.     In  efCect  July  1,  1874.] 

Proving  handwriting,  generally:  See  Code  Civ. 
Proc,  sees.  1315,  1943-1946. 

§  1200.  An  officer  taking  proof  of  the  execution 
of  any  instrument  must,  in  his  certificate  indorsed 
thereon  or  attached  thereto,  set  forth  all  the  mat- 
ters required  by  law  to  be  done  or  known  by  him, 
or  proved  before  him  on  the  proceeding,  together 
with  the  names  of  all  the  witnesses  examined  be- 
fore him.  their  places  of  residence  respectively, 
and  the  substance  of  their  testimony. 

§  1201.  Officers  authorized  to  take  the  proof 
of  instruments  nre  authorized  in  such  proceed- 
ings: 

1.  To  administer  oaths  or  affirmations,  as  pre- 
scribed in  section  2093,  Code  of  Civil  Procedure; 

2.  To  employ  and  swear  interpreters; 

3.  To  issue  subpoena,  as  prescribed  in  section 
1980,  Code  of  Civil  Procedure;^ 

4.  To  punish  for  contempt,  as  prescribed  in  sec- 
tions 1991,  1993,  1994,  Code  of  Civil  Procedure. 

The  civil  damages  and  forfeiture  to  the  party 
aggrieved  are  prescribed  in  section  1992,  Code  of 
Civil  Procedure. 

§  1202.  When  the  acknowledgment  or  proof  of 
the  execution  of  an  instrument  is  properly  made, 
but  defectively  certified,  any  party  interested  may 
have  an  action  in  the  District  Court  to  obtain  a 
judgment  correcting  the  certificate. 

§  1203.    Any  person  interested  under  an  instru- 


295  TRANSFER.  §§  1204-1207 

ment  entitled  to  be  proved  for  record  may  insti- 
tute an  action  in  the  District  Court  against  the 
proper  parties  to  obtain  a  judgment  proving  such 
instrument. 

§  1204.  A  certified  copy  of  the  judgment  in  a 
proceeding  instituted  under  either  of  the  two  pre- 
ceding sections,  showing  the  proof  of  the  instru- 
ment, and  attached  thereto,  entitles  such  instru- 
ment to  record,  with  lil^e  effect  as  if  acl^nowl- 
edged. 

§  1205.  The  legality  of  the  execution,  acknowl- 
edgment, proof,  form,  or  record  of  any  conveyance 
or  other  instrument  made  before  this  Code  goes 
into  effect,  executed,  acknowledged,  proved,  or 
recorded  is  not  affected  by  anything  contained  in 
this  chapter,  but  depends  for  its  validity  and  le- 
gality upon  the  laws  in  force  when  the  act  was 
performed. 

§  1206.  All  conveyances  of  real  property  made 
before  this  Code  goes  into  effect,  and  acknowl- 
edged or  proved  according  to  the  laws  in  force 
at  the  time  of  such  mai^:ing  and  acknowledgment 
or  proof,  have  the  same  force  as  evidence,  and 
may  be  recorded,  in  the  same  manner  and  with 
the  like  effect,  as  -conveyances  executed  and  ac- 
knowledged in  pursuance  of  this  chapter. 

§  1207.  Any  instrument  affecting  real  property, 
which  was,  previous  to  the  first  day  of  January, 
one  thousand  eight  hundred  and  ninety-seven, 
copied  into  the  proper  boolc  of  record,  kept  in  the 
office  of  any  County  Recorder,  shall  be  deemed  to 
impart,  after  that  date,  notice  of  its  contents  to 
subsequent  purchasers  and  incumbrancers,  not- 
withstanding any  defect,  omission,  or  informality 
in  the  execution  of  the  instrument,  or  in  the  cer- 
tificate of    acknowledgment   thereof,   or  the    ab- 


§§  1213,  1214  TRANSFER.  2»6 

sence  of  any  such  certificate;  but  nothing  herein 
shall  be  deemed  to  affect  the  rights  of  purchasers 
or  incumbrancers  previous  to  that  date.  Duly 
certified  copies  of  the  record  of  any  such  instru- 
ment may  be  read  in  evidence  with  like  effect  as 
copies  of  an  instrument  duly  acknowledged  and 
recorded;  provided,  it  be  first  shown  that  the 
original  instrument  was  genuine.  [Amendment 
approved  March  4,  1897,  chapter  LXXIV.  The 
original  of  this  section  was  a  new  section  ap- 
proved March  30,  1874;  Amendments  1873-4,  p. 
228. 

ARTICLE  IV. 

EFFECT    OF    RECORDING    OR   THE    WANT    THEREOF. 

§  1213.  Record,   where  and  to   whom  notice. 

§  1214.  Conveyances  to  be  recorded,  or  are  void,  &c. 

§  1215.  Conveyance   defined. 

§  1216.  Powers  of  attorney,  how  revoked. 

§  1217.  Unrecorded  instrument  valid  between  the  parties. 

§  1213.  Every  conveyance  of  real  property,  ac- 
knowledged or  proved,  and  certified,  and  record- 
ed, as  prescribed  by  law,  from  the  time  it  is  filed 
with  the  Recorder  for  record,  is  constructive  no- 
tice of  the  contents  thereof  to  subsequent  pur- 
chasers and  mortgagees;  and  a  certified  copy  of 
any  such  recorded  conveyance  may  be  recorded 
in  any  other  county,  and  when  so  recorded  the 
record  thereof  shall  have  the  same  force  and  ef- 
fect as  though  it  was  of  the  original  conveyance. 
[Amendment  approved  March  3,  1897;  Stats.  1897, 
<h.  LXVIII.] 

Recording  dates  from  time  of  deposit:  See  ante, 
see.   1170. 

«^  1214.  Every  conveyance  of  real  property, 
other  than  a  lease  for  a  term  not  exceeding  one 
year,  is  void  as  against  any  subsequent  purchaser 
or  mortgagee  of  the  same  property,  or  any  part 


■j^:  TRANSFER.  §§1215-1217 

thereof,  in  good  faith  and  for  a  valuable  consider- 
<ition,  whose  conveyance  is  first  duly  recorded,  and 
as  against  any  judgment  affecting  the  title,  un- 
less such  conveyance  shall  have  been  duly  re- 
corded prior  to  the  record  of  notice  of  action. 
[Amendment  approved  March  12,  1895;  Stats. 
1895,  p.  45.     In  effect  in  sixty  days.] 

Intent  to  defraud  purchasers  avoids  deed:  See 
sec.  1227,  post. 

When  purchaser  deemed  to  have  notice:  See 
sec.  1217,  post. 

§  1215.  The  term  "conveyance,"  as  used  in 
sections  1213  and  1214.  embraces  every  instrument 
in  writing  by  which  any  estate  or  interest  in  real 
property  is  created,  alienated,  mortgaged,  or  en- 
cumbered, or  by  which  the  title  to  any  real  prop- 
erty may  be  affected,  except  wills. 

§  1216.  Xo  instrument  containing  a  power  to 
convey  or  execute  instruments  affecting  real  prop- 
erty, which  has  been  recorded,  is  revolted  by  any 
act  of  the  party  by  whom  it  was  executed,  un- 
less the  instrument  containing  such  revocation  is 
also  acknowledged  or  proved,  certified  and  re- 
corded, in  the  same  oflBce  in  which  the  instrument 
containing  the  power  was  recorded. 

§  1217.  An  unrecorded  instrument  is  valid  as 
between  the  parties  thereto  and  those  who  have 
notice  thereof. 


§§  1227-1229  TRANSFER.  298 

CHAPTEK  V. 

UNLAWFUL  TRANSFERS. 

§  1227.     Certain  instruments  void  against  purchasers,   &c. 
§  1228.     Not  void   against   purchaser   having   notice,    unless 

fraud  is  mutual. 
§  1229.    Power  to  revoke,  when  deemed  executed. 
§  1230.    Same. 
§  1231,     Other  provisions. 

§  1227.  Every  instrument,  other  than  a  will, 
affecting  an  estate  in  real  property,  including 
every  charge  upon  real  property,  or  upon  its  rents 
or  profits,  made  with  intent  to  defraud  prior  or 
subsequent  purchasers  thereof,  or  incumbrancers 
thereon,  is  void  as  against  every  purchaser  or  in- 
cumbrancer, for  value,  of  the  same  property,  or 
the  rents  or  profits  thereof. 

Transfers  in  fraud  of  creditors:  See  sec.  3439, 
post. 

Fraudulent  intent  is  question  of  fact:  See  sec. 
3442,  post. 

§  1228,  No  instrument  is  to  be  avoided  under 
the  last  section,  in  favor  of  a  subsequent  pur- 
chaser or  incumbrancer  having  notice  thereof  at 
the  time  his  purchase  was  made,  or  his  lien  ac- 
quired, unless  the  person  in  whose  favor  the  in- 
strument was  made  was  privy  to  the  fraud  in- 
tended, 

§  1229.  AVhere  a  poAver  to  revoke  or  modify  an 
instrument  affecting  the  title  to,  or  the  enjoy- 
ment of  an  estate  in  real  property,  is  reserved  to 
the  grantor,  or  given  to  any  other  person,  a  sub- 
sequent grant  of,  or  charge  upon,  the  estate,  by 
the  person  having  the  power  of  revocation,  in  fa 
vor  of  a  purchaser  or  incumbrancer  for  value, 
operates  as  a   revocation   of  the  original   instru- 


::;)9  HOMESTEADS.  §§  1230,  1231 

meut,  to  the  extent  of  the  power,  iu  favor  of  such 
purchaser  or  incumbrancer. 

§  1320.  Where  a  person  having  a  power  of  rev- 
ocation, within  the  provisions  of  the  last  section, 
is  not  entitled  to  execute  it  until  after  the  time 
at  which  he  makes  such  a  grant  or  charge  as  is 
described  in  that  section,  the  power  is  deemed  to 
be  executed  as  soon  as  he  is  entitled  to  execute  it. 

§  1231.  Other  provisions  concerning  unlawful 
transfers  are  contained  in  Part  II.,  Division 
Fourth,  of  this  Code,  concerning  the  Special  Rela- 
tions of  Debtor  and  Creditor. 

See  sees.  .34,  .39.  post. 


TITLE   V. 

HOMESTEADS. 

Chapter  I.    General  Provisions,  §§  1237-1261. 

II.    Homestead  of  the  Head  of  a  Family, 
§§  1262-1265. 
III.    Homestead  of  other  Persons,  §§  1266- 
1269. 

CHAPTER  I. 

GENERAL  PROVISIONS. 

§  1237.  Homestead,   of  what  it  consists. 

§  1238.  From  what  it  may  be  carved. 

§  1239.  From  what  not. 

§  1240.  Exempt  from   forced   sale. 

§  1241.  Subject  to,  when. 

§  1242.  How  conveyed  or  incumbered. 

§  1243.  How  abandoned. 

§  1244.  Same. 

§  1245.  Proceedings  on  execution  against  homestead. 

§  1246.  Same 

§  1247.  Same. 

§  1248.  Same. 

§  1249.  Same. 


Ji  1287-1239  HOMESTEADS.  3C>0 

S  1250.  Same. 

§  1251.  Same. 

§  1252.  Same. 

§  1253.  Same. 

§  1254.  Same. 

§  1255.  Same. 

§  1256.  Same. 

§  1257.  After    sale,    money    equal    to    homestead   exemption 

protected. 

§  1258.  Compensation  of  appraisers. 

§  1259.  Costs. 

§  1260.  Who  may  select  homestead,  value  of. 

§  1261.  Head  of  family  defined. 

§  1237.  The  homestead  consists  of  the  dwell- 
iug-house  in  which  the  claimant  resides,  and  the 
hind  on  which  the  same  is  situated,  selected  as  in 
This  title  provided.  [Amendment  approved  March 
IM).  1874;  Amendments  1873-4,  p.  228.  In  effect 
July  1,  1874.] 

Homesteads— Constitutional  protection:  See  art. 
17.  sec.  1. 

Selection  of  homestead:   Sec.   12G2,   post. 

Exemption  of  homestead:  Sees.  1240,  1241,  infra. 

Setting-  apart  homestead  for  decedent's  family: 
Cdde  Civ,  Proc,  sees.  14G5,  et  seq. 

Ahnndonment  of  homestead:  Sec.  1243,  infra. 

>j  1238.  If  the  claimant  be  married,  the  uome- 
stead  may  be  selected  from  the  community  prop- 
erty, or  the  separate  property  of  the  husband,  or. 
with  the  consent  of  the  wife,  from  her  separate 
i)roperty.  When  the  claimant  is  not  married,  but 
is  the  head  of  a  family,  within  the  meaning  of 
section  one  thousand  two  hundred  and  sixty-one. 
the  homestead  may  be  selected  from  any  of  his  or 
lier  property.  [Amendment  approved  March  30. 
1874;  Amendments  1873-4,  p.  229.  In  effect  July 
1.  1874.] 

S  1239.  The  homestead  cannot  be  selected 
from  the  separate  property  of  the  wife  without 
lier  cons<ifit.  slioTvn  l>y  her  makina'.  or  joinintr  in 


301  HOMESTEADS.  §§  1240-1243 

making,  the  declaration  of  homestead.  [Amend- 
ment approved  Mai'ch  30,  1874;  Amendments  1873- 
4,  p.  229.    In  effect  July  1,  1874.] 

§  1240.  The  homestead  is  exempt  from  exe- 
cution or  forced  sale,  except  as  in  this  title  pro- 
vided. 

§  1241.  The  homestead  is  subject  to  execution 
or  forced  sale  in  satisfaction  of  judgments  ob- 
tained: 

1.  Before  the  declaration  of  homestead  was 
filed  for  record,  and  which  constitute  liens  upon 
the  premises; 

2.  On  debts  secured  by  mechanics,  contractors, 
subcontractors,  artisans,  architects,  builders,  la- 
borers of  every  class,  materialmen's  or  vendors' 
liens  upon  the  premises; 

3.  On  debts  secured  by  mortgages  on  the  prem- 
ises, executed  and  acknowledged  by  the  husband 
and  wife,  or  by  an  unmarried  claimant; 

4.  On  debts  secured  by  mortgages  on  the  prem- 
ises, executed  and  recorded  before  the  declara- 
tion of  homestead  was  filed  for  record.  [Amend- 
ment approved  March  9,  1887;  Stats.  1887,  p.  81. 
In  effect  immediately.] 

Mortgage  of:  See  next  section. 

§  1242.  The  homestead  of  a  married  person 
cannot  be  conveyed  or  incumbered,  unless  the  in- 
strument by  which  it  is  conveyed  or  incumbered 
is  executed  and  acknowledged  by  both  husband 
and  wife. 

See  section  1241,  subd.  3,  4. 

Act  enabling  parties  to  alienate  and  incumber 
homesteads:  See  post,  Appendix,  p.  771. 

§  1243.  A  homestead  can  be  abandoned  only 
by  a  declaration  of  abandonment,  or  a  grant 
thereof,  executed  and  acknowledged: 

Civ.    Code.— 26. 


§§  1244-1249  HOMESTEADS.  302 

1.  By  the  husband  and  wife,  if  the  claimant 
is  married; 

2.  By  the  claimant,  if  unmarried. 

§  1244.  A  declaration  of  abandonment  is  ef- 
fectual only  from  the  time  it  is  filed  in  the  office 
in  which  the  homestead  was  recorded. 

§  1245.  When  an  execution  for  the  enforce- 
ment of  a  judgment  obtained  in  a  case  not  within 
the  classes  enumerated  in  section  1241,  is  levied 
upon  the  homestead,  the  judgment  creditor  may 
apply  to  the  Superior  Court  of  the  county  in 
which  the  homestead  is  situated  for  the  appoint- 
ment of  persons  to  appraise  the  value  thereof. 
[Amendment  approved  April  6,  1880;  Amend- 
ments 1880,  p.  7.     In  effect  immediately.] 

Value  of  homestead:  See  sec.  12G3. 

§  1246.  The  application  must  be  made  upon  a 
verified  petition,  showing: 

1.  The  fact  that  an  execution  has  been  levied 
upon  the  homestead; 

2.  I'he  name  of  the  claimant; 

3.  That  the  value  of  the  homestead  exceeds  the 
amount  of  the  homestead  exemption. 

§  1247.  The  petition  must  be  filed  with  the 
clerk  of  the  Superior  Court.  [Amendment  ap- 
proved April  C),  1880;  Amendments,  1880,  p.  8.  In 
effect  immediately.] 

§  1248.  A  copy  of  the  petition,  with  a  notice  of 
the  time  and  place  of  hearing,  must  be  served 
upon  the  claimant,  at  least  two  days  before  the 
hearing. 

§  1249.  At  the  hearing  the  judge  may,  upon 
proof  of  the  service  of  a  copy  of  the  petition 
and  notice,   and  of  the  facts  stated  in  the  peti- 


303  HOMESTEADS.  §§  1250-1256 

tion,  appoint  three  disinterested  residents  of  the 
county  to  appraise  the  value  of  the  homestead. 

§  1250.  The  persons  appointed,  before  entering 
upon  the  performance  of  their  duties,  must  talie 
an  oath  to  faithfully  perform  the  same. 

§  1251.  They  must  view  the  premises  and  ap- 
praise the  value  thereof,  and  if  the  appraised 
value  exceeds  the  homestead  exemption  they 
must  determine  whether  the  land  claimed  can  be 
divided  without  material  injury. 

§  1252.  Within  fifteen  days  after  their  appoint- 
ment they  must  mnke  to  the  judge  a  report  in 
writing,  which  report  must  show  the  appraised 
value  and  their  determination  upon  the  matter  of 
a  division  of  the  land  claimed. 

§  1253.  If,  from  the  report,  it  appears  to  the 
judge  that  the  land  claimed  can  be  divided  with- 
out material  injury,  he  must,  by  an  order,  direct 
the  appraisers  to  set  off  to  the  claimant  so  much 
of  the  land,  including  the  residence,  as  will 
amount  in  value  to  the  homestead  exemption,  and 
the  execution  may  be  enforced  against  the  re- 
mainder of  the  land. 

§  1254.  If,  from  the  report,  it  appears  to  the 
judge  that  the  land  claimed  exceeds  in  value  the 
amount  of  the  homestead  exemption,  and  that  it 
cannot  be  divided,  he  must  make  an  order  direct- 
ing its  sale  under  the  execution. 

§  1255.  At  such  sale  no  bid  must  be  received, 
unless  it  exceeds  the  amount  of  the  homestead 
exemption. 

§  1256.  If  the  sale  is  made,  the  proceeds  there- 
of,  to  the  amount  of  the  homestead  exemption. 


* 


U  1257-1231  HOMESTEADS.  304 

must  be  paid  to  the  claimant,  and  the  balance  ap- 
plied to  the  satisfaction  of  the  execution. 

§  1257,  The  money  paid  to  the  claimant  is  en- 
titled, for  the  period  of  six  months  thereafter,  to 
the  same  protection  against  legal  process  and  the 
voluntary  disposition  of  the  husband  which  the 
law  gives  to  the  homestead.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4.  In 
effect  immediately.] 

§  1258.  The  court  must  fix  the  compensation 
of  the  appraisers,  not  to  exceed  five  dollars  per 
day  each  for  the  time  actually  engaged. 

§  1259.  The  execution  creditor  must  pay  the 
costs  of  these  proceedings  in  the  first  instance;  but 
in  the  cases  provided  for  in  sections  1253  and  1254 
the  amount  so  paid  must  be  added  as  costs  on 
execution,  and  collected  accordingly. 

§  1260.  Homesteads  may  be  selected  and 
claimed: 

1.  Of  not  exceeding  five  thousand  dollars  in 
value  by  any  head  of  a  family; 

2.  Of  not  exceeding  one  thousand  dollars  in 
value  by  any  other  person. 

Estimate  of  value:  See  sec.  1263,  infra. 
Place  of  recording:  See  sec.  12G4,  infra. 

§  1261.  The  phrase  "head  of  a  family,"  as 
used  in  this  title,  includes  within  its  meaning,— 

1.  The  husband,  when  the  claimant  is  a  mar- 
ried person; 

2.  Every  person  who  has  residing  on  the  prem- 
ises with  him  or  her,  and  under  his  or  her  care 
and  maintenance,  either:  (1)  his  or  her  minor 
child,  or  minor  grandchild,  or  the  minor  child  of 
his  or  her  deceased  wife  or  husband;  (2)  a  minor 


i 


305  HOMESTEADS.  §§  1262-1263 

brother  or  sister,  or  the  minor  child  of  a  deceased 
brother  or  sister; 

3.  A  father,  mother,  grandfather,  or  grand- 
mother; 

4.  The  father,  mother,  grandfather,  or  grand- 
mother of  a  deceased  husband  or  wife; 

5.  An  unmarried  sister,  or  any  other  of  the  rel- 
atives mentioned  in  this  section,  who  have  at- 
tained the  age  of  majority,  and  are  unable  to  take 
care  of  or  support  themselves.  [Amendment  ap- 
proved March  9.  1893:  Stats.  1893,  p.  123.  In  effect 
immediately.] 

Property  exempt  from  execution  to  be  set  apart 
for  family:  Code  Civ.  Proc.  sees.  1465-1470. 

CHAPTER  II. 

HOMESTEAD   OF   THE   HEAD   OF   A   FAMILY. 

§  1262.  Mode  of  selection. 

§  1263.  Declaration  of  homestead. 

§  1264.  Declaration  must  be  recorded. 

§  1265.  Tenure  by  which  homestead  is  held. 

§  1262.  In  order  to  select  a  homestead,  the  hus- 
band or  other  head  of  a  family,  or  in  case  the 
husband  has  not  made  such  selection,  the  wife 
must  execute  and  acknowledge,  in  the  same  man- 
ner as  a  grant  of  real  property  is  acknowledged, 
a  declaration  of  homestead,  and  file  the  same  for 
record.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  230.  In  effect  July  1. 
1874- ] 

Declaration  of  homestead:  See  next  section. 

Selection  by  wife:  See  sees.  1238,  1239,  ante. 

Place  of  recording:  See  sec.  1264,  infra. 

§  1263.  The  declaration  of  homestead  must 
contain: 

1.  A  statement,  showing  that  the  person  mak- 
ing it  Is  the  head  of  a  family;  or.  when  the  declar- 


§§  1264,  1265  HOMESTEADS.  306 

ation  is  made  by  the  wife,  showing  that  her  hus- 
band has  not  made  such  declaration,  and  that  she 
therefore  malies  the  declaration  for  their  joint 
benefit; 

2.  A  statement  that  the  person  making  it  is  re- 
siding on  the  premises,  and  claims  them  as  a 
homestead; 

3.  A  description  of  the  premises; 

4.  An  estimate  of  their  actual  cash  value. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  231.     In  effect  July  1,  1874.] 

Head  of  a  family:  See  sec.  12G1,  ante. 
Tiesidence  necessary:  See  sec.  1237. 

§  1264.  The  declaration  must  be  recorded  in 
the  office  of  the  recorder  of  the  county  in  which 
the  land  is  situated. 

Duty  of  recorder:  See  Polit.  Code,  sec.  4235. 

§  1265.  From  and  after  the  time  the  declar- 
ation is  filed  for  record,  the  premises  therein  de- 
scribed constitute  a  homestead.  If  the  selection 
was  made  by  a  married  person  from  the  communi- 
ty property,  the  land,  on  the  death  of  either  of  the 
spouses,  vests  in  the  survivor,  subject  to  no  other 
liability  than  such  as  exists  or  has  been  created 
under  the  provisions  of  this  title;  in  other  cases, 
upon  the  death  of  the  person  whose  property  was 
selected  as  a  homestead,  it  shall  go  to  his  heirs 
or  devisees,  subject  to  the  power  of  the  Superior 
Court  to  assign  the  same  for  a  limited  period  to 
the  family  of  the  decedent;  but  in  no  case  shall 
it  be  held  liable  for  the  debts  of  the  owner,  ex- 
cept as  provided  in  this  title.  [Amendment  ap- 
proved April  G.  1880;  Amendments  1880,  p.  8.  In 
effect  immediately.] 

Descent  of  homestead:  See  Code  Civ.  Proc, 
sees.  1470.  1474. 

Homestead  set  apart  by  Probate  Court:  Codr* 
Civ.  Proc,  sees.  1474-1478. 


HOMESTEAD— WILLS.  §§  1266-1269 


CHAPTER   HI. 

HOMESTEAD  OF  OTHER  PERSONS. 

§  1266.    Mode  of  selection. 
§  1267.    Declaration  of  homestead. 
§  1268.     Declaration   must  be  recorded. 

.§  1269.     Effect  of  filing  for  record  the  declaration  of  home- 
stead. 

§  1266.  Any  person  other  than  the  head  of  a 
family,  in  the  selection  of  a  homestead,  must  exe- 
cute and  acknowledge,  in  the  same  manner  as  a 
grant  of  real  property  is  aclinoTvledged,  a  "Declar- 
ation of  Homestead." 

§  1267.  The  declaration  must  contain  every- 
thing required  by  the  second,  third,  and  fourth 
subdivisions  of  section  1263. 

§  1268.  The  declaration  must  be  recorded  in 
the  ofSce  of  the  county  recorder  of  the  county  in 
which  the  land  is  situated. 

Duty  of  recorder:  See  Polit.  Code,  sec.  4235. 

§  1269.  From  and  after  the  time  the  declara 
tion  is  filed  for  record,  the  land  described  therein 
is  a  homestead. 


TITLE  VI. 

WILLS. 

Chapter  I.    Execution  and  Revocation  of  Wills,  §§ 
1270-1313. 
II.    Interpretation  of  Wills,  §§  1317-1351 
III.    General  Provisions  relating  to  Wills, 
§§  1357-1377. 


WILLS.  308 

CHAPTER  I. 

EXECUTION   AND    REVOCATION   OF   WILLS. 

§  1270.    Who  may  make  a  wiJl. 

§  1271.     Monomaniac  incompetent.     (Repealed.) 

§  1272.    Will,  or  part  thereof,  procured  by  fraud. 

§  1273.     Separate   property  of  married  women. 

§  1274.    What  may  pass  by  will. 

§  1275.     Who  may  take  by  will. 

§  1276.    Written  will,   how  to  be  executed. 

§  1277.     Definition  of  an  olographic  will. 

§  1278.     Witness  to  add  residence. 

§  1279.     Mutual  will. 

§  1280.     Competency  of  subscribing  witness. 

§  1281.     Conditional  will. 

§  1282.  Gifts  to  subscribing  witnesses  void.  Creditors  com- 
petent witnesses. 

§  1283.  Witness  who  is  a  devisee,  and  who  would  be  entitled 
to  share  of  testator's  estate  if  no  will,  entitled  to 
share  to  amount  of  devise. 

§  1284.    Will   made  out  of  this  State.     (Repealed.) 

§  1285.     Will  not  duly  executed,  void. 

§  1286.     Subsequent  change  of  domicile.     (Repealed.) 

§  1287.     Republication  by  codicil. 

§  1288.     Nuncupative  will,   how  to  be  executed. 

§  1289.     Requisites  of  a  valid  nuncupative  will. 

§  1290.     Proof  of  nuncupative  wills. 

§  1291.     Probate  of  nuncupative  wills. 

§  1292.    Written  will,  how  revoked. 

§  1293.     Evidence  of  revocation. 

§  1294.  Revocation  by  obliteration  on  face  of  will.  (Re- 
pealed.) 

§  1295.     Revocation  of  duplicate. 

§  1296.     Revocation  by  subsequent,  will. 

§  1297.  Antecedent  not  revived  by  revocation  of  subsequent 
will. 

§  1298.     Revocation  by  marriage  and  birth  of  issue. 

§  1299.     Effect  of  marriage  of  a  man  on  his  will. 

§  1300.    Effect  of  a  marriage  of  a  woman  on  her  will. 

5  1301.     Contract  of  sale  not  a  revocation. 

§  1302.     Mortgage  not  a  revocation  of  will. 

§  1303.     Conveyance,   when   not  a   revocation. 

§  1304.    When  it  is  a  revocation. 

§  1305.     Revocation   of  codicils. 

§  1306.    Afterborn   child,   unprovided  for,   to   succeed. 

§  1307.  Children  or  issue  of  children  of  testator  unprovided 
for  by  his  will. 

§  1308.  Share  of  afterborn  child,  out  of  what  part  of  estate 
to  be  paid. 


.09  WILLS.  §§  1270-1273 

I  1309.    Advancement  during  lifetime  of  testator. 

§  1310.  Death  of  devisee,  being  relation  of  testator,  in  life- 
time of  testator,   leaving  lineal   descendants. 

§  1311.     Devises  of  land,   how  construed. 

§  1312.  Will  to  pass  rights  acquired  after  the  making  there- 
of. 

§  1313.     Restriction  to  devise  for  charitable  uses. 

§  1270.  Every  person  over  the  age  of  eighteen 
rears,  of  sound  mind,  may,  by  last  will,  dispose  of 
all  his  estate,  real  and  personal,  and  such  es- 
tate not  disposed  of  by  will  is  succeeded  to  as 
provided  in  Title  Til.  of  this  part,  being  charge- 
able in  both  cases  with  the  payment  of  all  the 
decedent's  debts,  as  provided  in  the  Code  of  Civil 
Procedure. 

Stats.  1850,  p.  177,  sec.  1. 

Wills  of  married  women:  See  sec.  1273. 

Wills  of  unmarried  women  revoked  by  mar- 
riage: Sec.  1300,  infra. 

Validity  of  will:  See  sections  on  execution  of 
wills,    sees.    1276,    1376. 

§  1271.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  232.    In  effect  July  1,  1874.] 

§  1272.  A  will,  or  a  part  of  a  will,  procured  to 
be  made  by  duress,  menace,  fraud,  or  undue  influ- 
ence, may  be  denied  probate;  and  a  revocation, 
procured  by  the  same  means,  may  be  declared 
void. 

Contest  of  will:  See  Code  Civ.  Proc.  sec. 
1312. 

Undue  influence  as  affecting  contracts:  See  post, 
sec.  1575. 

Revocation  of  will:  Sec.  1292,  post. 

Contesting  probate  of  will:  Code  Civ.  Proc.  sees. 
1312  Gt  sea. 

§  1273.  A  married  woman  may  dispose  of  all 
her  separate  estate  by  will,  without  the  consent 


§§  1274-1276  WILLS.  310 

of  her  husband,  and  may  alter  or  revoke  the  will 
in  like  manner  as  if  she  were  single.  Her  will 
must  be  executed  and  proved  in  like  manner  as 
other  wills.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  p.  232.  In  effect  July 
1,  1874.] 

§  1274.  Every  estate  and  interest  in  real  or 
personal  property,  to  which  heirs,  husband,  widow, 
or  next  of  kin  might  succeed,  may  be  disposed  of 
by  will,  except  as  otherwise  provided  in  sections 
1401  and  1402. 

§  1275.  A  testamentary  disposition  may  be 
made  to  any  person  capable  by  law  of  taking  the 
property  so  disposed  of,  except  corporations  other 
than  those  formed  for  scientific,  literary,  or  solely 
educational  purposes,  cannot  take  under  a  will, 
unless  expressly  authorized  by  statute.  [Amend- 
ment approved  January  29,  1874;  Amendments 
1873-4,  p.  275.     In  effect  immediately.] 

Charitable  uses  valid:  See  sec.  847,  ante. 

Corporations  existing  before  the  code:  See  sec. 
2S8. 

§  1276.  Every  will,  other  than  a  nuncupative 
will,  must  be  in  writing;  and  every  will,  other 
than  an  olographic  will,  and  a  nuncupative  will, 
must  be  executed  and  attested  as  follows: 

1.  It  must  be  subscribed  at  the  end  thereof  by 
the  testator  iiimself,  or  some  person  in  his  pres- 
ence and  by  his  direction  must  subscribe  his  name 
thereto; 

2.  The  subscription  must  be  made  in  the  pres- 
ence of  the  attesting  witnesses,  or  be  acknowl- 
edged by  the  testator  to  them,  to  have  been  made 
by  him  or  by  his  authority; 

3.  The  testator  must,  at  the  time  of  subscribing 
or  acknowledging  the  same,  declare  to  the  attest- 
ing witnesses  that  the  instrument  is  his  will;  and, 


3U  WILLS.  §§  1277-1281 

■i.  There  must  be  two  attesting  witnesses,  each 
of  whom  must  sign  his  name  as  a  witness,  at  the 
end  of  the  will,  at  the  testator's  request,  and  in 
his  presence. 

See  sec.  1278,  infra. 

Execution  of  foreign  will:  See  sec.  1367,  post. 

Olographic  will:  See  sec.  1277,  infra. 

Conjoint  or  mutual  will:  See  sec.  1279,  infra. 

Nuncupative  will:  See  sees.  1288-1291. 

§  1277.  An  olographic  will  is  one  that  is  en- 
tirely written,  dated,  and  signed  by  the  hand  of 
the  testator  himself.  It  is  subject  to  no  other 
form,  and  may  be  made  in  or  out  of  this  State, 
and  need  not  be  witnessed. 

May  be  proven  in  same  manner  as  other  private 
writings:  Code  Civ.  Proc,  sec.  1309. 

§  1278.  A  witness  to  a  written  will  must  write, 
with  his  name,  his  place  of  residence;  and  a  per- 
son who  subscribes  the  testator's  name,  by  his  di- 
rection, must  write  his  own  name  as  a  witness  to 
the  will.  But  a  violation  of  this  section  does  not 
affect  the  validity  of  the  will. 

§  1279.  A  conjoint  or  mutual  will  is  valid,  but 
it  may  be  revolted  by  any  of  the  testators,  in  like 
manner  with  any  other  will. 

§  1280.  If  the  subscribing  witneses  to  a  will 
are  competent  at  the  time  of  attesting  its  execu- 
tion, their  subsequent  incompetency,  from  what- 
ever cause  it  may  arise,  does  not  prevent  the  pro- 
bate and  allowance  of  the  will,  if  it  is  otherwise 
satisfactorily  proved. 

§  1281.  A  will,  the  validity  of  which  is  made 
by  its  own  terms  conditional,  may  be  denied  pro- 
bate, according  to  the  event,  with  reference  to 
the  condition. 


§§  1282-1286  WILLS.  312 

Conditional  devises  and  bequests:  See  sees.  1344 
et  seq.,  post. 

§  1282.  All  beneficial  devises,  legacies,  au<' 
gifts  whatever,  made  or  given  in  any  will  to  a 
subscribing  witness  thereto,  are  void,  unless  there 
are  two  other  competent  subscribing  witnesses  to 
the  same;  but  a  mere  charge  on  the  estate  of  tli 
testator  for  the  payment  of  debts  does  not  pre- 
vent his  creditors  from  being  competent  witnesses 
to  his  will. 

§  1283.  If  a  witness,  to  whom  any  beneficial 
devise,  legacy,  or  gift,  void  by  the  preceding  sec- 
tion, is  made,  would  have  been  entitled  to  any 
share  of  the  estate  of  the  testator,  in  case  the 
will  should  not  be  established,  he  succeeds  to  so 
much  of  the  share  as  would  be  distributed  to  him, 
not  exceeding  the  devise  or  bequest  made  to  him 
in  the  will,  and  he  may  recover  the  same  of  the 
other  devisees  or  legatees  named  in  the  will,  in 
proportion  to  and  out  of  the  parts  devised  or  be- 
queathed to  them.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  p.  232.  In  effect 
July  1,  1874.] 

§  1284.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  242.     In  effect  July  1,  1874.] 

§  1285.  No  will  made  out  of  this  State  is  valid 
as  a  will  in  this  State,  unless  executed  according 
to  the  provisions  of  this  chapter.  [Amendment 
approved  INIarch  30,  1874;  Amendments  1873-4,  p. 
232.     In  effect  July  1,  1874.] 

Probate  of  foreign  wills:  Code  Civ.  Proc,  sec. 
1322. 

§  1286.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  232.     In  effect  July  1,  1874.] 


313  WILLS.  §§  1287-1280 

§  1287.  The  execution  of  a  codicil,  referring  to 
a  previous  will,  has  the  effect  to  republish  the 
will,  as  modified  by  the  codicil. 

§  1288.  A  nuncupative  will  is  not  required  to 
be  in  writing,  nor  to  be  declared  or  attested  with 
any  formalities. 

How  admitted  to  probate:  Code  Civ.  Proc,  sec. 
1344. 

Probating  nuncupative  wills:  See  sees.  1290. 
1291,  infra. 

§  1289.  To  make  a  nuncupative  will  valid,  and 
to  entitle  it  to  be  admitted  to  probate,  the  fol- 
lowing requisites  must  be  observed: 

1.  The  estate  bequeathed  must  not  exceed  in 
value  the  sum  of  one  thousand  dollars; 

2.  It  must  be  proved  by  two  witnesses  who 
were  present  at  the  making  thereof,  one  of  whom 
was  asked  by  the  testator,  at  the  time  to  bear 
witness  that  such  was  his  will,  or  to  that  effect; 

3.  The  decedent  must,  at  the  time,  have  been 
in  actual  military  service  in  the  field,  or  doing 
duty  on  shipboard  at  sea,  and  in  either  case  in 
actual  contemplation,  fear,  or  peril  of  death;  or 
the  decedent  must  have  been,  at  the  time,  in  ex- 
pectation of  immediate  death  from  an  injury  re- 
ceived the  same  day.  [Amendment  approved 
March  80,  1874;  Amendments  1873-4,  p.  233.  In 
effect  July  1.  1874.] 

§  1290.  No  proof  must  be  received  of  any  nun- 
cupative will  unless  it  is  offered  within  six  months 
after  speaking  the  testamentary  words,  nor  unless 
the  words,  or  the  substance  thereof,  were  reduced 
to  writing  within  thirty  days  after  they  were 
spoken. 

Probate  of  nuncupative  wills:  See  Code  Civ. 
Proc,  sec.  1344. 

Civ.    Code.— 27. 


§§  1291-1296  WILLS.  314 

§  1291.  No  probate  of  any  nuncupative  will 
must  be  granted  for  fourteen  days  after  the  death 
of  the  testator,  nor  must  any  nuncupative  will  be 
at  any  time  proved,  unless  the  testamentary 
words,  or  the  substance  thereof,  be  first  commit- 
ted to  writing,  and  process  issued  to  call  in  the 
widow,  or  other  persons  interested,  to  contest  the 
probate  of  such  will,  if  they  think  proper. 

Time  of  probate:  See  Code  Civ.  Proc,  sec.  1345. 

§  1292.  Except  in  the  cases  in  this  chapter 
mentioned,  no  written  will,  nor  any  part  thereof, 
can  be  revoked  or  altered  otherwise  than: 

1.  By  a  written  will,  or  other  w^riting  of  the 
testator,  declaring  such  revocation  or  alteration, 
and  executed  with  the  same  formalities  with 
which  a  will  should  be  executed  by  such  testator; 
or, 

2.  By  being  burnt,  torn,  cancelled,  obliterated, 
or  destroyed,  with  the  intent  and  for  the  purpose 
of  revoking  the  same,  by  the  testator  himself,  or 
by  some  person  in  his  presence  and  by  his  direc- 
tion. 

Code  applies  to  what  wills:  See  sec.  1374,  post. 

§  1293.  When  a  will  is  cancelled  or  destroyed 
by  any  other  person  than  the  testator,  the  direc- 
tion of  the  testator  and  the  fact  of  such  injury  or 
destruction,  must  be  proved  by  two  witnesses. 

§  1294.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  233.    In  effect  July  1,  1874.] 

§  1295.  The  revocation  of  a  will,  executed  in 
duplicate,  may  be  made  by  revoking  one  of  the 
duplicates. 

§  1296.  A  prior  will  is  not  revoked  by  a  subse- 
quent will,  unless  the  latter  contains  an  express 
revocation,  or  provisions  wholly  inconsistent  with 


315  WILI.S.  §§  1297-1301 

the  terms  of  the  former  will;  but  in  other  cases 
the  prior  will  remains  effectual  so  far  as  consist- 
ent with  the  provisions  of  the  subsequent  will. 

§  1297.  If,  after  mailing  a  will,  the  testator 
duly  makes  and  executes  a  second  will,  the  de- 
struction, cancellation,  or  revocation  of  such  sec- 
ond will  does  not  revive  the  first  will,  unless  it 
appears  by  the  terms  of  such  revocation  that  it 
was  the  intention  to  revive  and  give  effect  to 
the  first  will,  or  unless,  after  such  destruction, 
cancellation,  or  revocation,  the  first  will  is  dul> 
republished. 

§  1298.  If,  after  having  made  a  will,  the  tes- 
tator marries,  and  has  issue  of  such  marriage, 
born  either  in  his  lifetime  or  after  his  death,  and 
the  wife  or  issue  survives  him,  the  will  is  re- 
voked, unless  provision  has  been  made  for  such 
issue  by  some  settlement,  or  unless  such  issue  are 
provided  for  in  the  will,  or  in  such  way  men- 
tioned therein  as  to  show  an  intention  not  to  make 
such  provision;  and  no  other  evidence  to  rebut  the 
presumption  of  such  revocation  can  be  received. 

§  1299.  If,  after  making  a  will,  the  testator 
marries,  and  the  wife  survives  the  testator,  the 
will  is  revoked,  unless  provision  has  been  made 
for  her  by  marriage  contract,  or  unless  she  is  pro- 
vided for  in  the  will,  or  in  such  way  mentioned 
therein  as  to  show  an  intention  not  to  make  such 
provision;  and  no  other  evidence  to  rebut  the  pre- 
sumption of  revocation  must  be  received. 

§  1300.  A  will,  executed  by  an  unmarried  wom- 
an, is  revoked  by  her  subsequent  marriage,  and  is 
not  revived  by  the  death  of  her  husband. 

§  1301.  An  agreement  made  by  a  testator,  for 
the  sale  or  transfer  of  property  disposed  of     by 


§§  1302-1305  WILLS.  316 

a  will  previously  made,  does  not  revoke  such  dis- 
posal; but  the  property  passes  by  the  will,  sub- 
ject to  the  same  remedies  on  the  testator's  agree- 
ment, for  a  specific  performance  or  otherwise 
against  the  devisees  or  legatees,  as  might  be  had 
against  the  testators  successors,  if  the  same  ha<l 
passed  by  succession. 

§  1302.  A  charge  or  incumbrance  upon  any  es- 
tate, for  the  purpose  of  securing  the  payment  of 
money  or  the  performance  of  any  covenant  or 
agreement,  is  not  a  revocation  of  any  will  relating 
to  ihe  same  estate  which  was  previously  exe- 
cuted; but  the  devise  and  legacies  therein  con- 
tained must  pass,  subject  to  such  charge  or  in- 
cumbrance. * 

8  1303.  A  conveyance,  settlement,  or  other  act 
ot  a  testator,  by  which  his  interest  in  a  thing 
previously  disposed  of  by  his  will  is  altered,  but 
not  wholly  divested,  is  not  a  revocation;  but  thf 
will  passes  the  property  which  would  otherwise 
devolve  by  succession. 

See  sees.  1304,  1311.  post. 

Ademption  of  legacies:  See  post,  sec.  1357. 

§  1304.  If  the  instrument  by  which  an  altera- 
tion is  made  in  the  testator's  interest  in  a  thing 
previously  disposed  of  by  his  will  expresses  his 
intent  that  it  shall  be  a  revocation,  or  if  it  con- 
tains provisions  wholly  inconsistent  with  the 
terms  and  nature  of  the  testamentary  disposition, 
it  operates  as  a  revocation  thereof,  unless  such  in- 
consistent provisions  depend  on  a  condition  or  con- 
tingency by  reason  of  which  they  do  not  talve 
effect. 

§  1305.  The  revocation  of  a  will  revokes  all  its 
<-odicils. 


317  WILLS.  §§  1306-1309 

§  1306.  "Whenever  a  testator  has  a  child  born 
after  the  making  of  his  will,  either  in  his  lifetime 
or  after  his  death,  and  dies  leaving  such  child  un- 
provided for  by  any  settlement,  and  neither  pro- 
vided for  nor  in  any  way  mentioned  in  his  will, 
the  child  succeeds  to  the  same  portion  of  the  tes- 
tator's real  and  personal  property  that  he  would 
have  succeeded  to  if  the  testator  had  died  intes- 
tate. 

§  1307.  When  any  testator  omits  to  provide  in 
his  will  for  any  of  his  childi'en,  or  for  the  issue 
of  any  deceased  child,  unless  it  appears  that  such 
omission  was  intentional,  such  child,  or  the  issue 
of  such  child,  must  have  the  same  share  in  the 
estate  of  the  testator  as  if  he  had  died  intestate, 
and  succeeds  thereto  as  provided  in  the  preceding 
section. 

Stats.  1850,  178,  sees.  16,  17. 

§  1308.  When  any  share  of  the  estate  of  ; 
testator  is  assigned  to  a  child  born  after  the  mak- 
ing of  a  will,  or  to  a  child,  or  the  issue  of  a  child, 
omitted  in  the  will,  as  hereinbefore  mentioned, 
the  same  must  first  be  taken  from  the  estate  not 
disposed  of  by  the  will,  if  any;  if  that  is  not  suf- 
ficient, so  much  as  may  be  necessary  must  be 
taken  from  all  the  devisees  or  legatees,  in  propor- 
tion to  the  value  they  may  respectively  receive  un- 
der the  will,  unless  the  obvious  intention  of  the 
testator  in  relation  to  some  specific  devise  or  be- 
quest, or  other  provision  in  the  will,  would  there- 
by be  defeated;  in  such  case,  such  specific  devise, 
legacy,  or  provision  may  be  exempted  from  such 
apportionment,  and  a  different  apportionment,  con- 
sistent with  the  intention  of  the  testator,  may  be 
adoDted. 

§  1309.  If  such  children,  or  their  descendants, 
so  unprovided  for.  had  an  equal  proportion  of  the 


§§  1310-1312  WILLS.  318 

testator's  estate  bestowed  on  them  in  the  testa- 
tor's lifetime,  by  way  of  advancement,  they  take 
nothing  in  virtue  of  the  provisions  of  the  three 
preceding  sections. 

Advancements,    question    of,    when    raised:  See 

Code  Civ.  Proc,  see.  1686. 

Advancements  in  cases  of  intestacy:  See  sees. 
1395-1399. 

§  1310.  When  any  estate  is  devised  to  any 
child,  or  other  relation  of  the  testator,  and  the  de- 
visee dies  before  the  testator,  leaving  lineal  de- 
scendants, such  descendants  tal^e  the  estate  so 
given  by  the  will,  in  the  same  manner  as  the  dev- 
isee would  have  done  had  he  survived  the  tes- 
tator. 

"By  right  of  representation"  defined:  Sec.  1403, 
post. 

Death  of  legatee.— Legacy  fails,  when:  See  sees. 
1343.   1344. 

§  1311.  Every  devise  of  land  in  any  will  con- 
veys all  the  estate  of  the  devisor  therein,  which 
he  could  lawfully  devise,  unless  it  clearly  appears 
by  the  will  that  he  intended  to  convey  a  less  es- 
tate. 

See  ante,  sec.  1303. 

§  1312.  Any  estate,  right,  or  interest  in  lands 
acquired  by  the  testator  after  the  making  of  his 
will,  passes  thereby  and  in  like  manner  as  if  title 
thereto  was  vested  in  him  at  the  time  of  making 
the  will,  unless  the  contrary  manifestly  appears 
by  the  will  to  have  been  the  intention  of  the  tes- 
tator. Every  will  made  in  express  terms  devis- 
ing, or  in  any  other  terms  denoting  the  intent  oi' 
the  testator  to  devise  all  the  real  estate  of  sucl' 
testator,  passes  all  the  real  estate  which  such 
testator  was  entitled  to  devise  at  the  time  of  his 


319  WILLS.  §  1313 

decease.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  233.  In  effect  July  3. 
1874.] 

Testamentary     dispositions     vest    at     testator's 
death:  Sec.  1341,  post. 

§  1313.  No  estate,  real  or  personal,  shall  be 
bequeathed  or  devised  to  any  charitable  or  benev 
olent  society,  or  corporation,  or  to  any  person  or 
persons  in  trust  for  charitable  uses,  except  the 
same  be  done  by  will  duly  executed  at  least  thirty 
days  before  the  decease  of  the  testator;  and  if 
so  made,  at  least  thirty  days  prior  to  such  death, 
such  devise  or  legacy,  and  each  of  them,  shall  be 
valid;  provided,  that  no  such  devises  or  bequests 
shall  collectively  exceed  one-third  of  the  estate  of 
the  testator  leaving  legal  heirs,  and  in  such  case 
a  pro  rata  deduction  from  such  devises  or  be- 
quests shall  be  made  so  as  to  reduce  the  aggregate 
thereof  to  one-third  of  such  estate;  and  all  dispo- 
sitions of  property  made  contrary  hereto  shall  be 
void,  and  go  to  the  residuary  legatee  or  devisee, 
next  of  kin,  or  heirs,  according  to  law.  [New  sec- 
tion approved  March  18,  1874;  Amendments 
1873-4,  p.  275.     In  effect  immediately.] 

Charitable  uses  permitted  by  the  codes:  See  sec. 
847.  ante. 


§  1317  WILLS.  320 


CHAPTER  II. 

INTERPRETATION    OP   WILLS,    AND   EFFECT    OF   VA- 
RIOUS PROVISIONS. 

§  1317.  Testator's  Intention  to  be  carried  out. 

§  1318.  Intention  to  be  ascertained  from  the  will. 

§  1319.  Rules  of  interpretation. 

§  1320.  Several  instruments  are  to  be  taken  together. 

§  1321.  Harmonizing  various  parts. 

§  1322.  In  what  case  devise  not  affected. 

§  1323.  When   ambiguous   or   doubtful. 

§  1324.  Words  taken  in  ordinary  sense. 

§  1325.  Words  to  receive  an  operative  construction. 

§  1326.  Intestacy  to   be  avoided. 

§  1327.  Effect  of  technical  words. 

§  1328.  Technical  words  not  necessary. 

§  1329.  Certain  words  not  necessary  to  pass  a  fee. 

§  1330.  Power  to  devise,  how  executed  by  terms  of  will. 

§  1331.  Devise  or  bequest  of  all  real  or  all  personal  prop- 
erty, or  both. 

§  1332.  Residuary  clause. 

§  1333.  Same. 

§  1334,  "Heirs,"    "relatives,"    "issue,"    "descendants,"    &c. 

§  1335.  Words  of  donation  and  of  limitation. 

§  1336.  To  what  time  words  refer. 

§  1337.  Devise  or  bequest  to  a  class. 

§  1338.  When  conversion  takes  effect. 

§  1339.  When  child  born  after  testator's  death  takes  under 
will. 

§  1340.  Mistakes  and  omissions. 

§  1341.  When  devises  and  bequests  vest. 

§  1342.  When  cannot  be  divested. 

§  1343.  Death   of  devisee  or   legatee. 

§  1344.  Interests  in  remainder  are  not  affected. 

§  1345.  Conditional  devises  and  bequests. 

§  1346.  Condition  precedent,  what. 

§  1347.  Effect  of  condition  precedent. 

§  1348.  Conditions  precedent,  when  deemed  performed. 

§  1349.  Condition  subsequent,  what. 

§  1350.  Devisees,  &c.,  take  as  tenants  in  common. 

§  1351.  Advancements,  when  ademptions. 

§  1317.  A  will  is  to  be  construed  according  to 
the  intention  of  the  testator.  Where  his  intention 
cannot  have  effect  to  its  full  extent,  it  must  have 
effect  as  far  as  possible. 


-I'l  WILLS.  §§  1318  1323 

Construction  of  will  made  before  the  code  went 
into  effect  not  affected  by  the  code:  Sec.  1375,  post. 

Construction  of  foreign  will:  Sec.  1376,  post. 

Declarations  of  testator  as  evidence:  See  next 
section. 

§  1318.  In  case  of  uncertainty  arising  upon 
the  face  of  a  will,  as  to  the  application  of  any  of 
its  provisions,  the  testators  intention  is  to  be  as- 
certained from  the  words  of  the  will  taking  into 
view  the  circumstances  under  which  it  was  made 
exclusive  of  his  oral  declarations. 

§  1319.  In  interpreting  a  will,  subject  to  the 
law  of  this  State,  the  rules  prescribed  by  the  fol- 
lowing sections  of  this  chapter  are  to  be  observed, 
unless  an  intention  to  the  contrary  clearly  ap- 
pears. 

§  1320.  Several  testamentary  instruments,  ex- 
ecuted by  the  same  testator,  are  to  be  taken  and 
construed  together  as  one  instrument. 

§  1321.  All  the  parts  of  a  will  are  to  be  con- 
strued in  relation  to  each  other,  and  so  as,  if  possi- 
ble, to  form  one  consistent  whole;  but  where  sev- 
eral parts  are  absolutely  irreconcilable,  the  latter 
must  prevail. 

§  1322.  A  clear  and  distinct  devise  or  bequest 
cannot  be  affected  by  any  reasons  assigned  there- 
for, or  by  any  other  words  not  equally  clear  and 
distinct,  or  by  inference  or  argument  from  other 
parts  of  the  will,  or  by  an  inaccurate  recital  of  or 
reference  to  its  contents  in  another  part  of  the 
will. 

Intention  of  testator:  See  sec.  1317. 

§  1323.  Where  the  meaning  of  any  part  of  a 
will  is  ambiguous  or  doubtful,  it  may  be  explained 


§§  1324-13331  WILLS.  322 

by  amy  reference  thereto,  or  recital  thereof,  in  an- 
other part  of  the  will. 

§  1324.  The  words  of  a  will  are  to  be  taken  in 
their  ordinary  and  grammatical  sense,  unless  a  clear 
intention  to  use  them  in  another  sense  can  be  col- 
lected, and  that  other  can  be  ascertained. 

§  1325.  The  words  of  a  will  are  to  receive  an 
interpretation  which  will  give  to  every  expressioii 
some  effect,  rather  than  one  which  will  render  any 
of  the  expressions  inoperative. 

See  sec.  1321. 

§  1326.  Of  two  modes  of  interpreting  a  will, 
that  is  to  be  preferred  which  will  prevent  a  total 
intestacy. 

§  1327.  Technical  words  in  a  will  are  to  be 
taken  in  their  technical  sense,  unless  the  context 
clearly  indicates  a  contrary  intention. 

§  1328.  Technical  words  are  not  necessary  to 
give  effect  to  any  species  of  disposition  by  a  will. 

§  1329.  The  term  "heir»,"  or  other  words  of  in- 
heritance, are  not  requisite  to  devise  a  fee,  and  a 
devise  of  real  property  passes  all  the  estate  of  the 
testator,  unless  otherwise  limited. 

Words  of  succession  not  necessary  to  transfer  a 
fee:  See  sec.  1072.  ante. 

§  1330.  Real  or  personal  property  embraced  in 
a  power  to  devise  passes  by  a  will  purporting  to 
devise  all  the  real  or  personal  property  of  the 
testator. 

§  1331.  A  devise  or  bequest  of  all  the  testator's 
real  or  personal  property,  in  express  terms,  or  in 
any  other  terms  denoting  his  intent  to  dispose  of 
all  his  real  or  personal  property,  passes  all  the 


323  WILLS.  §§  1332-1335 

real  or  personal  property  wliich  lie  was  entitled  to 
dispose  of  by  will  at  the  time  of  his  death. 

See  sees.  1303,  1311,  1312,  ante. 

General  and  specific  legacies:  See  post,  sec.  1357. 

§  1332.  A  devise  of  the  residue  of  the  testator's 
real  property  passes  all  the  real  property  which  he 
was  entitled  to  devise  at  the  time  of  his  death, 
not  otherwise  effectually  devised  by  his  will. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  234.     In  effect  July  1,  1874.] 

§  1333.  A  bequest  of  the  residue  of  the  testa- 
tor's personal  property  passes  all  the  personal 
property  which  he  was  entitled  to  bequeath  at  the 
time  of  his  death,  not  otherwise  effectually  be- 
queathed by  his  will.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  234.  In 
effect  July  1,  1874.] 

§  1334.  A  testamentary  disposition  to  "heirs," 
"relations,"  "nearest  relations,"  "representatives," 
"legal  representatives,"  or  "personal  representa- 
tives," or  "family,"  "issue,"  "descendants," 
"nearest"  or  "next  of  kin,"  of  any  person,  with- 
out other  words  of  qualification,  and  when  the 
terms  are  used  as  words  of  donation,  and  not  of 
limitation,  vests  the  property  in  those  who  would 
be  entitled  to  succeed  to  the  property  of  such  per- 
son, according  to  the  provisions  of  the  Title  on 
Succession  in  this  Code. 

§  1335.  The  terms  mentioned  in  the  last  section 
are  used  as  words  of  donation,  and  not  of  limita- 
tion, when  the  property  is  given  to  the  person  so 
designated  directly,  and  not  as  a  qualification  of 
an  estate  given  to  the  ancestor  of  such  person. 

Rule  in  Shelly's  Case  not  adopted  in  this  State: 
See  sec.  779.  ante. 


§§  1336-1341  WILLS.  324 

§  1336.  Words  iu  a  will  referring  to  death  or 
survivorsliip,  simply,  relate  to  the  time  of  the  tes- 
tator's death,  unless  possession  is  actually  post- 
poned, when  they  must  be  referred  to  the  time  of 
possession. 

§  1337.  A  testamentary  disposition  to  a  class 
includes  every  person  answering  the  description 
at  the  testator's  death;  but  when  the  possession 
is  postponed  to  a  future  period,  it  includes  also  all 
persons  coming  within  the  description  before  the 
time  to  which  possession  is  postponed. 

Posthumous  children:  See  infra,  sec.  1339. 

§  1338.  When  a  will  directs  the  conversion  of 
real  property  into  money,  such  property  and  all 
its  proceeds  must  be  deemed  personal  property 
from  the  time  of  the  testator's  death. 

§  1339.  A  child  conceived  before,  but  not  born 
until  after  a  testator's  death,  or  any  other  period 
when  a  disposition  to  a  class  vests  in  right  or  in 
possession,  takes,  if  answering  to  the  description 
of  the  class. 

Child  en  ventre  sa  mere:  See  sec.  29,  ante. 

§  1340.  When,  applying  a  will,  it  is  found  that 
there  is  an  imperfect  description,  or  that  no  per- 
son or  property  exactly  answers  the  description, 
mistakes  and  omissions  must  be  corrected,  if  the 
error  appears  from  the  context  of  the  will  or  from 
extrinsic  evidence;  but  evidence  of  the  declara- 
tions of  the  testator  as  to  his  intentions  cannot  be 
received. 

§  1341.  Testamentary  dispositions,  including 
devises  and  bequests  to  a  person  on  attaining  ma- 
jority, are  presumed  to  vest  at  the  testator's 
death. 


325  WILLS.  §§  1342-1347 

§  1342.  A  testamentary  disposition,  when  vest- 
ed, cannot  be  divested  unless  upon  ttie  occurrence 
of  the  precise  contingency  prescribed  by  the  testa- 
tor for  that  purpose. 

§  1343.  If  a  devisee  or  legatee  dies  during  the 
lifetime  of  the  testator,  the  testamentary  disposi- 
tion to  him  fails,  unless  an  intention  appears  to 
substitute  some  other  in  his  place,  except  as  pro- 
vided in  section  thirteen  hundred  and  ten. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  234.     In  effect  July  1,  1874.] 

§  1344.  The  death  of  a  devisee  or  legatee  of  a 
limited  interest  before  the  testator's  death  does 
not  defeat  the  interests  of  persons  in  remainder, 
who  survive  the  testator. 

§  1345.  A  conditional  disposition  is  one  which 
depends  upon  the  occurrence  of  some  uncertain 
event,  by  which  it  is  either  to  take  effect  or  be  de- 
feated. 

Conditions  of  ownership:  See  sees.  707,  ante,  et 
seq. 

Conditional  obligations:  See  sees.  1434.  post,  et 
seq. 

§  1346.  A  condition  precedent  in  a  will  is 
one  which  is  required  to  be  fulfilled  before  a  par- 
ticular disposition  tal^es  effect. 

§  1347.  Where  a  testamentary  disposition  is 
made  upon  a  condition  precedent,  nothing  vests 
until  the  condition  is  fulfilled,  except  where  such 
fulfillm-ent  is  impossible,  in  which  case  the  dispo- 
sition vests,  unless  the  condition  was  the  sole  mo- 
tive thereof,  and  the  impossibility  was  unknown 
to  the  testator,  or  arose  from  an  unavoidable  event 
subsequent  to  the  execution  of  the  will. 

Civ.    Code.— 28. 


§§  1348-1351  WILLS.  326 

§  1348.  A  couclitioii  precedent  iu  a  will  is  to  be 
deemed  perlormed  when  the  testator's  intention 
has  been  substantially,  though  not  literally,  com- 
plied with. 

§  1349.  A  condition  subsequent  is  where  an  es- 
tate or  interest  is  so  given  as  to  vest  immedi- 
ately, subject  only  to  be  divested  by  some  subse- 
quent act  or  event. 

^  1350.  A  devise  or  legacy  given  to  more  than 
one  person  vests  in  them  as  owners  in  common. 

§  1351.  Advancements  or  gifts  are  not  to  be 
taken  as  ademptions  of  general  legacies,  unless 
such  intention  is  expressed  by  the  testator  in  writ- 
ing. 

Advancement  in  cases  of  intestacy:  See  post, 
sees.  1395-1399. 


CHArTEIi    III. 

GENERAL  PROVISIONS. 

§  1357.     Nature  and  designations  of  legacies. 

1.  Specific; 

2.  Demonstrative; 

3.  Annuities; 

4.  Residuary; 

5.  General. 

§  1358.  Order   of   sale   in   case   of   an    intestate. 

S  1359.  Order  of  sale  in  case  of  a  testator. 

§  13fi0.  Legacies,   how  charged  with   debts. 

§  1361.  Same. 

§  1362.  Abatement. 

§  1363.  Specific   devises  and  legacies. 

§  1364.  Heir's  conveyance  good,  unless  will  is  proved  within 

four  years. 

§  1365.  Possession  of  legatees. 

§  1366.  Bequest  of  interest. 

§  1367.  Satisfaction. 

;i  1338.  Legacies,   when   due. 

§  1369.  Interest. 

§  1370.  Construction  of  these  rules. 

§  1371.  Executor  according  to  the  tenor. 


327  WILLS.  §§  1357,  1358 

§  1372.  Power  to  appoint  is  invalid. 

§  1373.  Executor   not    to    act   till    qualified. 

§  1374.  Provisions  as  to  revocations. 

§  1375.  Execution  and   construction   of  prior   wills   not   af- 
fected. 

§  1376.  The  law  of  what  place  applies. 

§  1377.  Liability  of  beneficiaries  for  testator's  obligations. 

§  1357,  Legacies  are  distinguished  and  desig- 
nated, according  to  tlieir  nature,  as  follows: 

1.  A  legacy  of  a  particular  thing,  specified  and 
distinguished  from  all  others  of  the  same  kind  be- 
longing to  the  testator,  is  specific;  if  such  legacy 
fails,  resort  cannot  he  had  to  the  other  property 
of  the  testator; 

2.  A  legacy  is  demonstrative  when  the  particu- 
lar fund  or  personal  property  is  pointed  out  from 
which  it  is  to  be  taken  or  paid;  if  such  fund  or 
property  fails,  in  whole  or  in  part,  resort  may  be 
had  to  the  general  assets,  as  in  case  of  a  general 
legacy; 

3.  An  annuity  is  a  bequest  of  certain  specified 
sums  periodically;  if  the  fund  or  property  out  of 
which  they  are  payable  fails,  resort  may  be  had 
to  the  general  assets,  as  in  case  of  a  general  leg- 
acy; 

4.  A  residuary  legacy  embraces  only  that  which 
remains  after  all  the  bequests  of  the  will  are  dis- 
charged ; 

5.  All  other  legacies  are  general  legacies. 
See  ante,  sec.  1303. 

Annuities  commence  at  the  testator's  death:  Sec. 
1368,  post. 

General  legacies,  payable  when:  See  sec.  1368. 
post. 

§  1358.  When  a  person  dies  intestate  all  his 
property,  real  and  personal,  without  any  distinc- 
tion between  them,  is  chargeable  with  the  pay- 
ment of  his  debts,  except  as  otherwise  provided  in 
this    Code    and    the    Code    of    Civil    Procedure. 


§§  1359,  1360  WILLS.  328 

L Amendment  approved  March  30,  1874;  Amend- 
ments 1S73-4,  p.  234.     In  effect  July  1,  1874.] 

Code  Civ.  Proc,  sees.  14G4-148G,  1510,  1519,  1562- 
1503. 

All  property  chargeable  with  debts:  Code  Civ. 
Proc,  sec.  1510. 

Debts  to  be  paid  from  what:  Code  Civ.  Proc, 
sec  1516;  sees.  1502  et  seq.,  of  the  same;  sec  1359, 
infra. 

Order  of  payment  of  debts:  Code  Civ.  Proc,  sec. 
1643. 

Provision  for  support  of  the  family:  Code  Civ. 
Proc,  sees.  1464  et  sea. 

1359.  The  property  of  a  testator,  except  as 
otherwise  si)ecially  provided  for  in  this  Code  and 
the  Code  of  Civil  Procedure,  must  be  resorted  to 
for  the  payment  of  debts,  in  the  following  order: 

1.  The  property  which  is  expressly  appropri- 
ated by  the  will  for  the  payment  of  the  debts; 

2.  Property  not  disposed  of  by  the  will; 

3.  Property  which  is  devised  or  bequeathed  to 
a  residuary  legatee; 

4.  Property  which  is  nt)t  specifically  devised  or 
bequeathed  and 

5.  All  other  property  ratably.  Before  any  debts 
are  paid  the  expenses  of  the  administration  and 
the  allowance  to  the  family  must  be  paid  or  pro- 
vided for.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4.  p.  234.  In  effect  July  1, 
1874.] 

Code  Civ.  Proc,  sees.  1516-1533,  1559-1560;  Sales 
of  Personal  Property,  Idem,  sees.  1622-1653;  Pay- 
ment of  Legacies,  etc..  Idem,  sees.  1658-1669;  lb. 
1563,  1564.  Payment  of  debts:  See  sections  refer- 
red to  in  note  to  section  1358.  supra. 

§  1360.  The  property  of  a  testator,  except  as 
otherwise  specially  provided  in  this  Code  and  the 


329  WILLS.  §§  1361-1364 

Code  of  Civil  Procedure,  must  be  resorted  to  for 
tlie  payment  of  legacies,  in  the  following  order: 

1.  The  property  which  is  expressly  appropri- 
ated by  the  Avill  for  the  payment  of  the  legacies; 

2.  Property  not  disposed  of  by  the  will; 

3.  Property  which  is  devised  or  bequeathed  to 
a  residuary  legatee; 

4.  Property  which  is  specifically  devised  or  be- 
queathed. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  235.  In  effect  July  1, 
1874.] 

Payment  of  legacies, — \\'hen  legacies  are  due: 
Sec.  13G8,  post;  when  may  be  paid:  Code  Civ. 
Proc,  sees.  1G58  et  seq. 

Legacies  liable  for  debts:  See  Code  Civ.  Proc, 
sees.  1563  et  sea. 

§  1361.  Legacies  to  htisband.  widow,  or  liin- 
dred  of  anj  class  are  chargeable  only  after  lega- 
cies to  persons  not  related  to  the  testator. 

§  1362.  Abatement  takes  place  in  any  class 
only  as  between  legacies  of  that  class,  unless  a 
different  intention  is  expressed  in  the  will. 

§  1363.  In  a  specific  devise  or  legacy,  the  title 
passes  by  the  will,  but  possession  can  only  be  ob- 
tained from  the  personal  representative;  and  he 
may  be  authorized  by  the  superior  court  to  sell 
the  property  devised  and  bequeathed,  in  the  cases 
herein  provided.  [Amendment  approved  April  6, 
1880;  Amendments  1880,  p.  8.  In  effect  immedi- 
ately.] 

How  title  passes  in  cases  of  intestacy:  See  sec. 
1384,  post. 

§  1364.  The  rights  of  a  purchaser  or  incum- 
brancer of  real  property,  in  good  faith  and  for 
value,  derived  from  any  person  claiming  the  same 
by   succession,    are   not   impaired   by   any   devise 


§§  1365-13  3S  WILLS.  330 

made  by  the  decedent  from  whom  succession  is 
<'kiimed,  unless  the  instrument  containing  such  de- 
vise is  duly  proved  as  a  will,  and  recorded  in  the 
office  of  the  clerli  of  the  superior  court  having 
jurisdiction  thereof,  or  unless  written  notice  of 
such  devise  is  filed  with  the  clerk  of  the  county 
where  the  real  property  is  situated,  within  four 
years  after  the  devisor's  death.  [Amendment  ap- 
proved April  0,  ISSO;  Amendments  ISSO,  p.  8.  In 
effect  immediately.] 

Recording  will:  See  Code  Civ.  Proc,  sees.  1314, 
1318. 

§  1365.  AVhere  specific  legacies  are  for  life 
onlj',  the  first  legatee  must  sign  and  deliver  to  the 
second  legatee,  or,  if  there  is  none,  to  the  personal 
representative,  an  inventory  of  the  property,  ex- 
pressing that  the  same  is  in  his  custody  for  life 
only,  and  that,  on  his  decease,  it  is  to  be  deliv- 
ered and  to  remain  to  the  use  and  for  the  benefit 
of  the  second  legatee,  or  to  the  personal  represen- 
tative, as  the  case  may  be. 

i^  1366.  In  case  of  a  bequest  of  the  interest  or 
income  of  a  certain  sum  or  fund,  the  income  ac- 
crues from  the  testator's  death. 

Annuities  commence  at  testator's  death:  Sec. 
1308,  infra. 

Accumulations:    See  sec.  722  ante,  et  seq. 

§  1367.  A  legacy,  or  a  gift  in  contemplation, 
fear,  or  peril  of  death,  may  be  satisfied  before 
death.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  235.  In  effect  July  1, 
1874.] 

§  1368.  Legacies  are  due  and  deliverable  at  the 
expiration  of  one  year  after  the  testator's  decease. 
Annuities  commence  at  the  testator's  decease. 


■.A  WILLS.  §§  1369-1374 

Legacies  payable  after  four  months:  See  sec. 
1658. 

§  1369.  Legacies  bear  interest  from  the  time 
when  they  are  due  and  payable,  except  that  lega- 
cies for  maintenance,  or  to  the  testator's  widow, 
bear  interest  from  the  testator's  decease. 

§  1370.  The  four  preceding  sections  are  in  all 
cases  to  be  controlled  by  a  testator's  express  in- 
tention. 

§  1371.  Where  it  appears,  by  the  terms  of  a 
will,  that  it  was  the  intention  of  the  testator  to 
commit  the  execution  thereof  and  the  administra- 
tion of  his  estate  to  any  person  as  executor,  such 
person,  although  not  named  executor,  is  entitled 
to  letters  testamentary  in  like  manner  as  if  he 
had  been  named  executor. 

Appointment  of  executors:  See  Code  Civ.  Proc, 
sees.  1349.  1353. 

§  1372.  An  authority  to  an  executor  to  appoint 
an  executor  is  void. 

Executor  of  executor:  See  Code  Civ.  Proc,  sec. 
1353. 

§  1373.  No  person  has  any  power,  as  an  exec- 
utor, until  he  qualifies,  except  that,  before  let- 
ters have  been  issued,  he  may  pay  funeral  charges 
and  take  necessary  meastu-es  for  the  preservation 
of  the  estate. 

Qualification:     See  Code  Civ.  Proc,  sees.  1349. 

Qualification  of  executor:  See  Code  Civ.  Proc, 
sees.  1353  et  seq. 

Payment  of  debts:    See  supra,  sec  1359. 

§  1374.  The  provisions  of  this  title  in  relation 
to  the  revocation  of  wills  apply  to  all  wills  made 


§§  1375-1377  WILLS.  332 

by  any  testator  living  at  tlie  expiration  of  one 
year  from  the  time  it  takes  effect. 

§  1375.  Tlie  provisions  of  this  title  do  not  im- 
pair the  validity  of  the  execution  of  any  will  made 
before  it  takes  effect,  or  affect  the  construction 
of  any  such  will. 

§  1376.  The  validity  and  interpretation  of 
wills,  wherever  made,  are  governed,  when  rela- 
ting to  property  within  this  State,  by  the  law  of 
this  State.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  p.  235.  In  effect  July 
1,  1874.] 

§  1377.  Those  to  whom  property  is  given  by 
will  are  liable  for  the  obligations  of  the  testator 
in  the  cases  and  to  the  extent  prescribed  by  the 
Code  of  Civil  Procedure. 


TITLE  VI J. 

SUCCESSION. 

§  1383.     Succession  defined. 

§  1384.  Who  first  succeeds  to  possession  of  estates  not  de- 
vised. 

§  1386.     Succession  to  and  distribution  of  property. 

§  1387.     Illegitimate  children  to  inherit  in  certain  events. 

§  1388.     The  mother   is   successor   to  illegitimate  child. 

§  13S9-1393.     Degrees  of  kindred,  how  computed. 

§  1394.     Relatives   of  the   half  blood. 

§  1395.     Advancements  constitute  part  of  distributive  share. 

§  1396.    Advancements,  when  too  much,  or  not  enough. 

§  1397.     What  are  advancements. 

§  1398.    Value  of  advancements,  how  determined. 

§  1399.    When  heir,  advanced  to,  dies  before  decedent. 

§  1400.     Inheritance  of  husband  and  wife  from  each  other. 

§  1401.  Distribution  of  the  common  property  on  death  of 
wife. 

§  1402.  Distribution  of  common  property  on  death  of  hus- 
band. 

§  1403,    Inheritance  by  representation. 

§  1404.    Aliens  may  inherit,  when,  and  how. 


333  SUCCESSION.  §§  1383-1386 

i  1405.     Succession  not  claimed,  attorney  general  to  cause  to 

be  sold,  and  proceeds  deposited. 
§  1406.    When  the  property  and  estate  escheat  to  the  State. 
^  1407.     Property    escheated    subject    to    charges    as    other 

property. 
§  1408.     Successor  liable  for  decedent's  obligations. 

§  1383.  Succession  is  the  coming  in  of  another 
to  take  the  property  of  one  who  dies  without  dis- 
posing of  it  by  will. 

§  1384.  The  property,  both  real  and  personal, 
of  one  who  dies  without  disposing  of  it  by  will, 
passes  to  the  heirs  of  the  intestate,  subject  to  the 
control  of  the  probate  court,  and  to  the  posses- 
sion of  any  administrator  appointed  by  that  court 
for  the  purposes  of  administration.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  p. 
236.     In  effect  July  1,  1874.] 

Possession  of  personal  representative:  See  Code 
Civ.  Proc,  sees.  1452,  1581. 

§  1385.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  236.    In  effect  July  1,  1874.] 

§  1386.  When  any  person  having  title  to  any 
estate  not  otherwise  limited  by  marriage  contract, 
dies  without  disposing  of  the  estate  by  will,  it  is 
succeeded  to  and  must  be  distributed  unless  other- 
wise expressly  provided  in  this  Code  and  the  Code 
of  Civil  Procedure,  subject  to  the  payment  of  his 
debts,  in  the  following  manner: 

1.  If  the  decedent  leave  a  surviving  husband  or 
wife,  and  only  one  child,  or  the  lawful  issue  of 
one  child,  in  equal  shares  to  the  surviving  hus- 
band, or  wife  and  child,  or  issue  of  such  child.  If 
the  decedent  leave  a  surviving  husband  or  wife, 
and  more  than  one  child  living,  or  one  child  liv- 
ing, and  the  lawful  issue  of  one  or  more  deceased 
children,  one-third  to  the  surviving  husband  or 
wife,   and  the  remainder  in  equal  shares  to  bis 


§  1386  SUCCESSION.  334 

ebildreu,  and  lo  the  lawful  issue  of  any  deceased 
child,  by  right  of  representation;  but  if  there  be 
no  child  of  the  decedent  living  at  his  death,  the 
remainder  goes  to  all  of  his  lineal  descendants; 
and  if  all  of  the  descendants  are  in  the  same  de- 
gree of  kindred  to  tlie  decedent,  they  share  equal- 
ly, otherwise  they  take  according  to  the  right 
of  representation.  If  the  decedent  leave  no  sur- 
viving husband  or  wife,  but  leave  issue,  the  whole 
estate  goes  to  such  issue;  and  if  such  issue  con- 
sists of  more  than  one  child  living,  or  one  child 
living,  and  the  lawful  issue  of  one  or  more  de- 
ceased children,  then  the  estate  goes  in  equal 
shares  to  the  children  living,  or  to  the  child  living, 
and  the  issue  of  the  deceased  child  or  children  by 
right  of  representation; 

2.  If  the  decedent  leave  no  issue,  the  estate  goes 
one-half  to  the  surviving  husband  or  wife,  and 
the  other  to  the  decedent's  father  and  mother  in 
equal  shares,  and  if  either  be  dead  the  whole  of 
said  half  goes  to  the  other.  If  there  be  no  father 
or  mother,  then  one-half  goes  in  equal  shares  to 
the  brothers  and  sisters  of  the  decedent,  and  to 
the  children  of  any  deceased  brother  or  sister 
by  right  of  representation.  If  the  decedent  leave 
no  issue,  nor  husband  nor  wife,  the  estate  must 
go  to  his  father  and  mother  in  equal  shares,  or  if 
either  be  dead  then  to  the  other; 

3.  If  there  be  neither  issue,  husband,  wife,  fath- 
er, nor  mother,  then  in  equal  shares  to  the  broth- 
ers and  sisters  of  the  decedent,  and  to  the  chil- 
dren of  any  deceased  brother  or  sister,  by  right 
of  representation: 

5.  If  the  decedent  leave  a  surviving  husband 
or  wife,  and  neither  issue,  father,  mother,  brother, 
nor  sister,  the  whole  estate  goes  to  the  surviving 
husband  or  wife: 

6.  If  the  decedent  leave  neither  issue,  husband, 
wife,  father,   mother,  brother,   nor  sister,  the  es- 


oJ5  SUCCESSION.  §  1386 

tare  must  go  to  the  uext  of  kio,  in  equal  degree, 
excepting  that  when  there  are  two  or  more  col- 
lateral kindred,  in  equal  degree,  but  claiming 
through  different  ancestors,  those  who  claimed 
through  the  nearest  ancestors  must  be  preferred 
to  those  claiming  through  an  ancestor  more  re- 
mote; 

7.  If  the  decedent  leave  several  children,  or 
<»ue  child  and  the  issue  of  one  or  more  children, 
and  any  such  surviving  child  dies  under  age,  and 
not  having  been  married,  all  the  estate  that  came 
to  the  deceased  child  by  inheritance  from  such  de- 
cedent descends  in  equal  shares  to  the  other  chil- 
dren of  the  same  parent,  and  to  the  issue  of  any 
such  other  children  who  are  dead,  by  right  of 
representation; 

8.  If,  at  the  death  of  sttch  child,  who  dies  under 
age,  not  having  been  married,  all  the  other  chil- 
dren of  his  parents  are  also  dead,  and  any  of 
them  have  left  issue,  the  estate  that  came  to  such 
child  by  inheritance  from  his  parent  descends  to 
the  issue  of  all  other  children  of  the  same  parent; 
and  if  all  the  issue  are  in  the  same  degree  of  kin- 
dred to  the  child,  they  share  the  estate  equally, 
otherwise  they  take  according  to  the  right  of  rep- 
resentation: 

9.  If  the  decedent  be  a  widow  or  widower,  and 
leave  no  kindred,  and  the  estate  or  any  portion 
thereof  was  common  property  of  such  decedent, 
and  his  or  her  deceased  spouse,  while  such  a  spouse 
was  living,  such  common  property  shall  go  to  the 
father  of  such  deceased  spouse,  or  if  he  be  dead, 
to  the  mother.  If  there  be  no  father  nor  mother, 
then  such  property  shall  go  to  the  brothers  and 
slvSters  of  such  deceased  spouse,  in  equal  shares, 
and  to  the  lawful  issue  of  any  deceased  brother 
or  sister  of  such  deceased  spouse,  by  right  of  rep- 
resentation; 

10.  If  the  decedent  have  no  husband,  wife,  or 


§§  1387-1388  SUCCESSION.  33$ 

kindred,  and  there  be  no  heirs  to  take  his  estate 
or  any  portion  thereof,  under  subdivision  nin»» 
of  this  section,  the  same  escheats  to  the  State  tor 
the  support  of  common  schools.  [Amendment  ap- 
proved April  23,  1880;  Amendments  1880,  14.  In 
effect  immediately.] 

The  original  section  was  founded  on  Stats.  1850, 
219,  sec.  1;  1862,  569,  sec.  1. 

Administration  of  intestates'  estates:  See  Code 
Civ.  Proc,  sees.  1365  et  seq. 

What  is  a  testament:  See  Code  Civ.  Proc,  sees. 
1312  and  1365. 

§  1387.  Every  illegitimate  child  is  an  heir  of 
the  person  who,  in  writing,  signed  in  the  presence 
of  a  competent  witness,  acknowledges  himself  to 
be  the  father  of  such  child;  and  in  all  cases  is  an 
heir  of  his  mother;  and  inherits  his  or  her  estate, 
in  whole  or  in  part,  as  the  case  may  be,  in  the 
same  manner  as  if  he  had  been  born  in  lawful 
wedlock;  but  he  does  not  represent  his  father  or 
mother  by  inheriting  any  part  of  the  estate  of  his 
or  her  kindred,  either  lineal  or  collateral,  unless, 
before  his  death,  his  parents  shall  have  intermar- 
ried, and  his  father,  after  such  marriage,  ac- 
knowledges him  as  his  child,  or  adopts  him  into 
his  family;  in  which  case  such  child  and  all  the 
legitimate  children  are  considered  brothers  and 
sisters,  and  on  the  death  of  either  of  them,  intes- 
tate, and  without  issue,  the  others  inherit  his  es- 
tate, and  are  heirs,  as  hereinbefore  provided,  in 
like  manner  as  if  all  the  children  had  been  legiti- 
mate; saving  to  the  father  and  mother  respective- 
ly their  rights  in  the  estates  of  all  the  children  in 
like  manner  as  if  all  had  been  legitimate.  The  is- 
sue of  all  marriages  null  in  law  or  dissolved  by 
divorce,  are  legitimate. 

Stats.  18.50,  219,  sec.  2. 

§   1388.    If  an   illegitimate  child,   who  has   not 


337  SUCCESSION.  §§  1389-1393 

been  acknowledged  or  adopted  by  his  father,  dies 
intestate,  without  lawful  issue,  his  estate  goes  to 
his  mother,  or,  in  ease  of  her  decease,  to  her  heirs 
at  law. 

Stats.  1850,  220,  sec.  3,  modified  by  adding  "has 
not  been  acknowledged  or  adopted  by  his  father.'" 

S  1389.  The  degree  of  kindred  is  established  by 
the  number  of  generations,  and  each  generation  is 
called  a  degree. 

Stats.  1850,  221,  sec.  4. 

S  1390.  The  series  of  degrees  forms  the  line; 
the  series  of  degrees  between  persons  who  de- 
scend from  one  another  is  called  direct  or  lineal 
consanguinity;  and  the  series  of  degrees  between 
persons  who  do  not  descend  from  one  another,  but 
spring  from  a  common  ancestor,  is  called  the  col- 
lateral line  or  collateral  consanguinity. 

Stats.  1850.  221,  sec.  5. 

§  1391.  The  direct  line  is  divided  into  a  direct 
line  descending  and  a  direct  line  ascending.  The 
first  is  that  which  connects  the  ancestors  with 
those  who  descend  from  him.  The  second  is  that 
which  connects  a  person  with  those  from  whom 
he  descends. 

§  1392.  In  the  direct  line  there  are  as  many  de- 
grees as  there  are  generations.  Thus,  the  son  is. 
with  regard  to  the  father,  in  the  first  degree;  the 
grandson  in  the  second;  and  vice  versa  with  re- 
gard to  the  father  and  grandfather  toward  the 
sons  and  grandsons. 

§  1393.  In  the  collateral  line  the  degrees  are 
counted  by  generations  from  one  of  the  relations 
up  to  the  common  ancestor,  and  from  the  common 
ancestor  to  the  other  relations.  In  such  computa- 
tion the  decedent  is  excluded,  the  relative  includ- 

Civ.  Code.— 29. 


§§  1394-1397  SUCCESSION.  338 

ed,  and  the  ancestor  counted  but  once.  Thus, 
brothers  are  related  in  the  second  degree;  uncle 
and  nephew  in  the  third  degree;  cousins  german  in 
the  fourth,  aud  so  on. 

§  1394.  Kindred  of  the  half  blood  inherit  equal- 
ly with  those  of  the  whole  blood  in  the  same  de- 
gree, unless  the  inheritance  come  to  the  intes- 
tate bj^  descent,  devise  or  gift  of  some  one  of  his 
ancestors,  in  which  case  all  those  who  are  not  of 
the  blood  of  such  ancestor  must  be  excluded  from 
such  inheritance. 

Kindred  of  half  blood  as  administrators:  See 
Code  Civ.  Proc,  sec.  1366. 

Stats.  1850,  221,  sec.  4. 

§  1395.  Any  estate,  real  or  personal,  given  by 
the  decedent  in  his  lifetime  as  an  advancement  to 
any  child,  or  other  lineal  descendant,  is  a  part  of 
the  estate  of  the  decedent  for  the  purposes  of  di- 
vision and  distribution  thereof  among  his  issue, 
and  must  be  taken  by  such  child,  or  other  lineal 
descendant,  toward  his  share  of  the  estate  of  the 
decedent. 

Advancements:     See  sees.  1309,  1351,  ante. 

§  1396.  If  the  amount  of  such  advancement  ex- 
ceeds the  share  of  the  heir  receiving  the  same,  he 
must  be  excluded  from  any  further  portion  in  the 
division  and  distribution  of  the  estate,  but  he 
must  not  be  required  to  refund  any  part  of  such 
advancement;  and  if  the  amount  so  received  is  less 
than  his  share,  he  is  entitled  to  so  much  more  as 
will  give  him  his  full  share  of  the  estate  of  the 
decedent. 

§  1397.  All  gifts  and  grants  are  made  as  ad- 
vancements, if  expressed  in  the  gift  or  grant  to 
be  so  made,  or  if  charged  in  writing  by  the  dece- 
dent as  an  advancement,  or  aclvuowledged  in  writ- 


3S9  SUCCESSION.  §§  1398-1402 

iuj^  as  such,  bj'  the  child  or  other  successor  or 
heir. 

§  1398.  If  the  value  of  the  estate  so  advanced 
is  expressed  in  the  conveyance,  or  in  the  charge 
thereof  made  by  the  decedent,  or  in  the  acknowl- 
edgment of  the  party  receiving  it,  it  must  be  held 
as  of  that  value  in  the  division  and  distribu- 
tion of  the  estate;  otherwise,  it  must  be  estimated 
according  to  its  value  when  given,  as  nearly  as 
the  same  can  be  ascertained. 

§  1399.  If  any  child,  or  other  lineal  descend- 
ant receiving  advancement,  dies  before  the  dece- 
dent, leaving  issue,  the  advancement  must  be 
taken  into  consideration  in  the  division  and  dis- 
tribution of  the  estate,  and  the  amount  thereof 
must  be  allowed  accordingly  by  the  representa- 
tives of  the  heirs  receiving  the  advancement,  in 
like  manner  as  if  the  advancement  had  been  made 
directly  to  them. 

§  1400.  The  provisions  of  the  preceding  sec- 
tions of  this  title,  as  to  the  inheritance  of  the  hus- 
band and  wife  from  each  other,  apply  only  to  the 
separate  property  of  the  decedents. 

§  1401.  Upon  the  death  of  the  wife,  the  entire 
community  property,  without  administration,  be- 
longs to  the  surviving  husband,  except  such  por- 
tion thereof  as  may  have  been  set  apart  to  her  by 
judicial  decree,  for  her  support  and  maintenance, 
which  portion  is  subject  to  her  testamentary  dis- 
position, and  in  the  absence  of  such  disposition, 
goes  to  her  descendants,  or  heirs,  exclusive  of  her 
husband.  [Amendment  approved  :March  30,  1874; 
Amendments  187;^>-4,  288.     In  effect  immediately.] 

§  1402.  T^pon  the  death  of  the  husband,  one- 
half  of  the  commuuitj'  property  goes  to  the  sur- 


§§  1403-1405  SUCCESSION.  340 

viving  wife,  and  the  other  half  is  subject  to  the 
testamentary  disposition  of  the  husband,  and  in 
the  absence  of  such  disposition,  goes  to  his  de- 
scendants, equally,  if  such  descendants  are  in  the 
same  degree  of  kindred  to  the  decedent;  other- 
wise, according  to  the  right  of  representation;  and 
in  the  absence  of  both  such  disposition  and  such 
descendants,  is  subject  to  distribution  in  the  same 
manner  as  the  separate  property  of  the  husband. 
In  case  of  the  dissolution  of  the  community  by 
the  death  of  the  husband,  the  entire  community 
property  is  equally  subject  to  his  debts,  the  family 
allowance,  and  the  charges  and  expenses  of  ad- 
ministration. 

Community  property  defined:  Sees.  163,  164, 
ante. 

§  1403.  Inheritance  or  succession  "by  right  of 
representation"  talies  place  when  the  descendants 
of  any  deceased  heir  talve  the  same  share  or  right 
in  the  estate  of  another  person  that  their  parents 
would  have  talcen  if  living.  Posthumous  chil- 
dren are  considered  as  living  at  the  death  of  their 
parents. 

See  sec.  1310,  ante. 

§  1404.  Resident  aliens  may  tal^e  in  all  cases 
by  succession  as  citizens;  and  no  person  capable 
of  succeeding  under  the  provisions  of  this  title  is 
precluded  from  such  succession  by  reason  of  the 
alienage  of  any  relative;  but  no  nonresident  for- 
eigner can  talie  by  succession  unless  he  appears 
and  claims  such  succession  within  five  years  after 
the  death  of  the  decedent  to  whom  he  claims  suc- 
cession. 

Aliens  may  talie  by  succession:  See  sees.  671, 
072,  ante. 

i^  1405.  When  succession  is  not  claimed  as  pro- 
vided in  the  preceding  section,  the  district  court. 


;:;41  SUCCESSION.  §§  1406-1408 

ou  information,  must  direct  the  Attorney  General 
to  reduce  tlie  property  to  his  or  the  possession  of 
the  State,  or  to  cause  the  same  to  be  sold,  and 
the  same  or  the  proceeds  thereof  to  be  deposited 
in  the  State  treasury  for  the  benefit  of  such  non- 
resident foreigner,  or  his  legal  representative,  to 
be  paid  to  him  whenever,  within  five  years  after 
such  deposit,  proof  to  the  satisfaction  of  the  State 
Comptroller  and  Treasurer  is  produced  that  he  is 
entitled  to  succeed  thereto. 

§  1406.  When  so  claimed,  the  evidence  and  the 
joint  order  of  the  Comptroller  and  Treasurer  must 
be  filed  by  the  Treasurer  as  his  voucher,  and  tne 
property  delivered  or  the  proceeds  paid  to  the 
claimant  on  filing  his  receipt  therefor.  If  no  one 
succeeds  to  the  estate  or  the  proceeds,  as  herein 
provided,  the  property  of  the  decedent  devolves 
and  escheats  to  the  people  of  the  State,  and  is 
placed  by  the  State  Treasurer  to  the  credit  of  the 
school  fund. 

§  1407.  Real  property  passing  to  the  Stafe  un- 
der the  last  section,  whether  held  by  the  State  or 
its  officers,  is  subject  to  the  same  charges  and 
trusts  to  which  it  would  have  been  subject  if  it 
had  passed  by  succession,  and  is  also  subject  to 
all  the  provisions  of  Title  YIII.,  Part  III.,  of  the 
Code  of  Civil  Procedure.     [Sees.  1269-1272.] 

§  1408.  Those  who  succeed  to  the  property  of 
a  decedent  are  liable  for  his  obligations  in  the 
eases  and  to  the  extent  prescribed  by  the  Code  of 
Civil  Procedure.     [§§  1298-1809.] 


S§  1410-1412  WATER    RIGHTS.  342 

TITLE  VIII. 

WATER    RIGHTS. 

§  1410.  Rights  to  water  may  be  acquired  by  appropriation. 

S  1411.  Appropriation  must  be  for  a  useful  purpose. 

§  1412.  Point  of  diversion  may  be  changed. 

§  1413.  Water   may   be   turned   into    natural    channels. 

§  1414.  First  in  time,   first  in  right. 

§  1415.  Notice  of  appropriation. 

§  1416.  Diligence  in  appropriating. 

§  1417.  Completion  defined. 

§  1418.  Doctrine  of  relation  applied. 

§  1419.  Forfeiture. 

§  1420.  Rights  of  present  claimant. 

§  1421.  Recorder  to  keep  book  in  which  to  record  notices. 

§  1422.  Prior  title  not  to  affect  rights  of  riparian  proprie- 
tors. 

§  1410.  The  right  to  the  use  of  running  water 
flowing  in  a  river  or  stream,  or  down  a  canyon  or 
lavine,  may  be  acquired  by  appropriation. 

See  Polit  Code,  sec.  3446. 

Acts  relating  to  irrigation:  vStatutes  in  force,  ti- 
tle, Irrigation. 

Rights  of  appropriators  as  between  themselves: 
See  sec.  1414. 

Riparian  rights  atfected  by  appropriation:  See 
sec.  1422. 

Posting  notice:     Sees.  1415  et  seq. 

§  1411.  The  appropriation  must  be  for  some 
useful  or  beneficial  purpose,  and  when  the  appro- 
priator  or  his  successor  in  interest  ceases  to  use 
it  for  such  a  purpose,  the  right  ceases. 

Appropriation  must  be  evidenced  by  physical 
acts:     See  sec.  1416. 

Amount  of  property  appropriated:    See  sec.  1415. 

§  1412.  The  person  entitled  to  the  use  may 
<'hange  the  place  of  diversion,  if  others  are  not 


343  WATER    RIGHTS.  §§  1413-1416 

injured  by  such  change,  and  may  extend  the  ditch 
ilume,  pipe,  or  aqueduct  by  which  the  diversion 
is  made  to  places  beyond  that  where  the  first  use 
was  made. 

S  1413.  The  water  appropriated  may  be  turned 
into  the  channel  of  another  stream  and  mingled 
with  its  water,  and  then  reclaimed;  but  in  reclaim- 
ing it  the  water  already  appropriated  by  another 
must  not  be  diminished. 

§  1414.  As  between  appropriators,  the  one  first 
in  time  is  the  first  in  right. 

When  right  begins:     See  sec.  1418. 

Use  of  water,  nature  of:     See  sec.  1411. 

Change  of  use:    See  sec.  1412. 

Rights  of  appropriators  as  against  the  govern- 
ment and  its  grantees:     See  sec.  1410. 

§  1415.  A  person  desiring  to  appropriate  water 
must  post  a  notice,  in  writing,  in  a  conspicuous 
place  at  the  point  of  intended  diversion,  stating 
therein: 

1.  That  he  claims  the  water  there  flowing  to  the 
extent  of  (giving  the  number)  inches,  measured 
under  a  four-inch  pressure; 

2.  The  purposes  for  which  he  claims  it,  and  the 
place  of  intended  use; 

3.  The  means  by  which  he  intends  to  divert 
it.  and  the  size  of  the  flume,  ditch,  pipe,  or  aque- 
duct in  which  he  intends  to  divert  it; 

A  copy  of  the  notice  must,  within  ten  days  after 
it  is  posted,  be  recorded  in  the  office  of  the  record- 
er of  the  county  in  which  it  is  posted. 

§  1416.  Within  sixty  days  after  the  notice  is 
posted  the  claimant  must  commence  the  excava- 
tion or  construction  of  the  worlis  in  which  he  in- 
tends to  divert  the  water,  and  must  prosecute  the 


§§  1417-1422  WATER    RIGHTS.  344 

work  diligently  and  uninterruptedly  to  completion, 
unless  temporarily  interrupted  by  snows  or  rain; 
provided,  that  if  the  erection  of  a  dam  has  been 
recommended  by  the  California  Debris  Commis- 
sion at  or  near  the  place  where  it  is  intended  to 
divert  the  water,  the  claimant  shall  have  sixty 
days  after  the  completion  of  such  dam  in  which 
to  commence  the  excavation  or  construction  of 
the  works  in  which  he  intends  to  divert  the  water. 
[Amendment  approved  March  23,  1895;  Stats. 
1895,  55.     In  effect  immediately.] 

Time  from  which  right  of  appropriation  becomes 
vested:    See  sec.  1118. 

§  1417.  By  "completion"  is  meant  conducting 
the  waters  to  the  place  of  intended  use. 

§  1418.  By  a  compliance  with  the  above  rules 
the  claimant's  right  to  the  use  of  the  water  relates 
back  to  the  time  the  notice  was  posted. 

§  1419.  A  failure  to  comply  with  such  rules  de- 
prives the  claimants  of  the  right  to  the  use  of  the 
water  as  against  a  subsequent  claimant  who  com- 
plies therewith. 

§  1420.  Persons  Avho  have  heretofore  claimed 
the  right  to  water,  and  who  have  not  constructed 
works  in  which  to  divert  it,  and  who  have  not 
diverted  nor  applied  it  to  some  useful  purpose, 
must,  after  this  title  takes  effect,  and  within 
twenty  days  thereafter,  proceed  as  in  this  title 
provided,  or  their  right  ceases. 

§  1421.  The  recorder  of  each  county  must  keep 
a  book,  in  which  he  must  record  the  notices  pro- 
vided for  in  this  title. 

§  1422.     [Repealed  March  15,  1887.] 
Acts  relating  to  irrigation:  See  Statutes  in  force, 
title,  Irrigation. 


345  HYDRAULIC    MINING.  §§  1424-1425 


TITLE  IX. 

HYDRAULIC   MINING. 

The  Civil  Code  of  the  State  of  California  is  here- 
by amended  by  adding  thereto  a  new  title,  to  be 
known  as  title  nine,  of  part  four,  of  division  two, 
of  said  Code,  to  read  as  follows: 

[Act  approved  March  24,  1893;  Stats.  1893,  333.] 

§  1424.    Where  hydraulic  mining   can   be   carried  on. 
§  1425.     Meaning  of  hydraulic  mining. 

§  1424.  The  business  of  hydraulic  mining  may 
be  carried  on  within  the  State  of  California  wher- 
ever and  whenever  the  same  can  be  carried  on 
without  material  injury  to  the  navigable  streams, 
or  the  lands  adjacent  thereto. 

§  1425.  Hydraulic  mining,  within  the  meaning 
of  this  title,  is  mining  by  means  of  the  applica- 
tion of  water,  under  pressure,  through  a  nozzle, 
against  a  natural  bank. 


DIVISION   THIRD. 


Part  I.    Obligations  in  General,  §§  1427- 
1543. 
11.    Contracts,  §§  1549-1701. 

III.  Obligations   Imposed    by  Law, 

§§  1708-1715. 

IV.  Obligations  Arising  from  Par- 

ticular Transactions,  §§  1721- 
3268. 


PART  I. 


OBLIGATIONS  IN  GENERAL. 

Title  I.    Definition  of  Obligations,  §§  1427-1428. 
II.    Interpretation    of    Obligations,    §§    1429- 
1451. 

III.  Transfer  of  Obligations,  §§  1457-1467. 

IV.  Extinction  of  Obligations,  §§  1473-1543. 


TITLE  I. 

DEFINITION  OF  OBLIGATIONS. 

§  1-427.     Obligation,  what. 

§  1428.    How  created  and  enforced. 

§  1427.  An  obligation  is  a  legal  duty,  by  which 
a  person  is  bound  to  do  or  not  to  do  a  certain 
thing. 

§  1428.    An  obligation  arises  either  from: 

1.  The  contract  of  the  parties;  or, 

2.  The  operation  of  law. 

An  obligation  arising  from  operation  of  law  may 
be  enforced  in  the  manner  provided  by  law,  or  by 
civil  action,  or  proceeding.  [Amendment  approv- 
ed March  30,  1874;  Amendments  1873-4,  239.  In 
effect  July  1,  1874.] 

Civ.  Code.— 20. 


§§  1429,  1430   INTERPRETATION   OF   OBLIGATIONS.         350 

TITLE  II. 

INTERPRETATION  OF  OBLIGATIONS. 

Chapter  I.    General    Rules    of    Interpretation,    § 
1429. 
II.    Joint  or  Several  Obligations,  §§  1430- 
1432. 

III.  Conditional  Obligations,  §§  1434-1442. 

IV.  Alternative  Obligations,  §§  1448-1451. 

CHAPTER  I. 

GENERAL  RULES  OP  INTERPRETATION. 
§  1429.    General  rules. 

§  1429.  Tlie  rules  which  govern  the  interpreta- 
tion of  contracts  are  prescribed  by  Part  II.  of  this 
division.  Other  obligations  are  interpreted  by  the 
same  rules  by  which  statutes  of  a  similar  nature 
are  interpreted. 

Interpretation  of  contracts:     See  sees.  1635-1661. 

CHAPTER  II. 

JOINT  OR  SEVERAL  OBLIGATIONS. 

§  1430.     Obligations,    joint   or  several,   &c. 

§  1431.    When  joint. 

§  1432.     Contribution  between  joint  parties. 

§  1430.  An  obligation  imposed  upon  several 
persons,  or  a  right  created  in  fftvor  of  several  per- 
sons, may  be: 

1.  Joint; 

2.  Several;  or. 

.'i.    Joint  and  several. 


351  INTERPRETATION  OF  OBLIGATIONS.   §§  1431-1435 

§  1431.  An  obligation  imposed  upon  several 
persons,  or  a  right  created  in  favor  of  several  per- 
sons, is  presumed  to  be  joint,  and  not  several,  ex- 
cept in  the  special  cases  mentioned  in  the  Title 
on  the  Interpretation  of  Contracts.  This  presump- 
tion, in  the  case  of  a  right,  can  be  overcome  only 
by  express  words  to  the  contrary. 

Promise  united  in  by  several,  all  of  whom  re- 
ceive some  benefit,  is  presumed  to  be  joint  and 
several:     See  sec.  1659,  post. 

Promise  in  the  singular,  but  executed  by  several, 
is  presumed  to  be  joint  and  several:  Sec.  1660, 
post. 

§  1432.  A  party  to  a  joint,  or  joint  and  several 
obligation,  who  satisfies  more  than  his  share  of 
the  claim  against  all,  may  require  a  proportionate 
contribution  from  all  the  parties  joined  with  him. 

See  sec.  2848,  post. 

CHAPTER   HI. 

CONDITIONAL  OBLIGATIONS. 

§  1434.  Obligation,  when  conditional. 

§  1435.  Conditions,  kinds  of. 

§  1436.  Conditions  precedent. 

§  1437.  Conditions  concurrent. 

§  1438.  Condition    subsequent. 

§  1439.  Performance,    &c.,    of   conditions,    when   essential. 

§  1440.  When  performance,    &c.,   excused. 

§  1441.  Impossible  or  unlawful  conditions  void. 

§  1442.  Conditions  involving  forfeiture,  how  construed. 

§  1434.  An  obligation  is  conditional,  when  the 
rights  or  duties  of  any  party  thereto  depend  upon 
the  occurrence  of  an  uncertain  event. 

§  1435.  Conditions  may  be  precedent,  concur- 
rent, or  subsequent. 

Conditions  of  ownersliip:  See  sees.  707.  708, 
ante. 


S§  1436-1440  INTERPRETATION    OF   OBLIGATIONS.         352 

Conditional  legacies:     See  ante,  sees.  1345,  1346. 
Conditions  precedent:    See  next  section. 
Conditions  concurrent:     See  sec.  1437,  infra. 
Conditions  subsequent:     See  sec.  1438,  infra. 

§  1436.  A  condition  precedent  is  one  which  is 
to  be  performed  before  some  right  dependent 
thereon  accrues,  or  some  act  dependent  thereon  is 
performed. 

See  sees.  707,  708,  ante. 

Unlawful  condition  precedent:  See  sec.  709, 
ante. 

§  1437.  Conditions  concurrent  are  those  which 
are  mutually  dependent,  and  are  to  be  performed 
at  the  same  time. 

§  1438.  A  condition  subsequent  is  one  referring 
to  a  future  event,  upon  the  liappening  of  which 
the  obligation  becomes  no  longer  binding  upon  the 
other  party,  if  he  chooses  to  avail  himself  of  the 
condition. 

See  ante,  sees.  707,  708. 

§  1439.  Before  any  party  to  an  obligation  can 
require  another  party  to  perform  any  act  under 
it,  he  must  fulfill  all  conditions  precedent  thereto 
imposed  upon  himself;  and  must  be  able  and  of- 
fer to  fulfill  all  conditions  concurrent  so  imposed 
upon  him  on  the  lil^e  fulfillment  by  the  other  par- 
ty, except  as  provided  by  the  next  section. 

§  1440.  If  a  party  to  an  obligation  gives  notice 
to  another  before  the  latter  is  in  default,  that  he 
will  not  perform  the  same  upon  his  part,  and 
does  not  retract  such  notice  before  the  time  at 
which  performance  upon  his  part  is  due,  such 
other  party  is  entitled  to  enforce  the  obligation 
without  previously  performing  or  offering  to  per- 


353         INTERPRETATION    OF   OBLIGATIONS.    §§1441-1449 

I'orin  any  conditions  upon  his  part  in  favor  of  the 
former  party. 

Refusal  to  accept  performance  before  the  time 
to  perform  is  equivalent  to  an  offer  of  perform- 
ance and  refusal:   Sec  1515,  post. 

§  1441.  A  condition  in  a  contract,  the  fulfil- 
ment of  ■^\'hich  is  impossible  or  unlawful,  within 
the  meaning  of  the  Article  on  the  Object  of  Con- 
tracts, or  which  is  repugnant  to  the  nature  of  the 
interest  created  by  the  contract,  is  void. 

Object  of  contracts:    See  sees.  1595,  post,  et  seq. 

Unlawful  conditions:   See  sees,  709,  ante,  et  seq. 

Conditions,  when  impossible,  within  the  mean- 
ing of  above  section:  See  sees.  1595,  post,  et  seq. 

§  1442.  A  condition  involving  a  forfeiture  must 
be  strictly  interpreted  against  the  party  for  whose 
benefit  it  is  created. 


CHAPTER  IV. 

ALTERNATIVE    OBLIGATIONS. 

§  1448.  Who   has   the   right   of    selection, 

§  1449.  Right  of  selection,  how  lost. 

§  1450.  Alternatives    indivisible. 

§  1451.  Nullity  of  one  or  more  of  alternative  obligations. 

§  1448.  If  an  obligation  requires  the  perform- 
ance of  one  of  two  acts  in  the  alternative,  the 
party  required  to  perform  has  the  right  of  selec- 
tion, unless  it  is  otherwise  provided  by  the  terms 
of  the  obligation. 

§  1449.  If  the  party  having  the  right  of  selec- 
tion between  alternative  acts  does  not  give  no- 
tice of  his  selection  to  the  other  party  within  the 
time,  if  any,  fixed  by  the  obligation  for  that  pur- 
pose, or,  if  none  is  so  fixed,  before  the  time  at 


§§  1450-1458   INTERPRETATION    OF    OBLIGATIONS.         354 

which  the  obligation  ought  to  be  performed,  the 
right  of  selection  passes  to  the  other  party. 

^  1450.  The  party  having  the  right  of  selection 
between  alternative  acts  must  select  one  of  them 
in  its  entirety,  and  cannot  select  part  of  one  and 
part  of  another  without  the  consent  of  the  other 
party. 

§  1451.  If  one  of  the  alternative  acts  required 
by  an  obligation  is  such  as  the  law  will  not  en- 
force, or  becomes  unlawful  or  impossible  of  per- 
formance, the  obligation  is  to  be  interpreted  as 
though  the  other  stood  alone. 


TITLE  III. 

TRANSFER   OF   OBLIGATIONS. 

§  1457.  Burden  of  obligation  not  transferable. 

§  1458.  Rights   arising   out   of   obligation   transferable. 

§  1459.  Non-negotiable    instruments    may   be   transferred. 

§  1460.  Covenants  running  with  land,   what. 

§  1461.  What  covenants  run  with  land. 

§  1462.  Same. 

§  1463.  Same. 

§  1464.  What   covenants    run    with    land   when    assigns   are 

named. 

§  1465.  Who  are  bound  by  covenants. 

§  1466.  Who    are    not. 

§  1467.  Apportionment  of  covenants. 

§  1457.  The  burden  of  an  obligation  may  be 
transferred  with  the  consent  of  the  party  entitled 
to  its  benefit,  but  not  otherwise,  except  as  pro- 
vided by   section   1466. 

§  1458.  A  right  arising  out  of  an  obligation  is 
the  property  of  the  person  to  whom  it  is  due,  and 
may  be  transferred  as  such. 

Assignment  of  things  in  action:  See  sees.  953. 
954,  ante. 


355  TRANSFER    OF    OBLIGATIONS.      §§  1459-1456 

§  1459.  A  iion-negotiable  written  contract  for 
the  payment  of  money  or  personal  property  may 
be  transferred  by  indorsement,  in  like  manner 
with  negotiable  instruments.  Such  indorsement 
shall  transfer  all  the  rights  of  the  assignor  under 
the  instrument  to  the  assignee,  subject  to  all 
equities  and  defenses  existing  in  favor  of  the  mak- 
er at  the  time  of  the  indorsement. 

Negotiable  instruments,  what  are:  See  sees. 
3087,  post,  et  seq. 

§  1460.  Certain  covenants,  contained  in  grants 
of  estates  in  real  property,  are  appurtenant  to 
such  estates,  and  pass  with  them,  so  as  to  bind 
the  assigns  of  the  covenantor  and  to  vest  in  the 
assigns  of  the  covenantee,  in  the  same  manner  as 
if  they  had  personally  entered  into  them.  Such 
covenants  are  said  to  run  with  the  land. 

Implied  covenants:     See  ante,  sec.  1113. 

Covenants  running  with  land:  See  the  succeed- 
ing sections  of  this  title,  especially  sees.  1462, 
1464. 

§  1461.  The  only  covenants  which  run  with  the 
land  are  those  specified  in  this  title,  and  those 
which  are  incidental  thereto. 

§  1462.  Every  covenant  contained  in  a  grant 
of  an  estate  in  real  property,  which  is  made  for 
the  direct  benefit  of  the  property,  or  some  part  of 
it  then  in  existence,  runs  with  the  land. 

Effect  of  transfers  generally:  See  ante,  sees. 
1<  .S3  et  sea. 

^  1463.  The  last  section  includes  covenants  "of 
warranty,''  "for  quiet  enjoyment,"  or  for  further 
assurance  on  the  part  of  a  grantor,  and  covenants 
for  the  payment  of  rent,  or  of  taxes  or  assessments 
upon  tlie  land,  on  the  part  of  a  grantee. 


§§  1464-1467      TRANSFER    OF    OBLIGATIONS.  356 

Damages  for  the  breach  of  the  above  covenants: 
See  sec.  3304,  post. 

Letter  of  real  property  to  secure  quiet  posses- 
sion of  the  hirer:   See  sec.  1927,  post. 

§  1464.  A  covenant  for  the  addition  of  some 
new  thing  to  real  property,  or  for  the  direct  bene- 
fit of  some  part  of  the  property  not  then  in  exist- 
ence or  annexed  thereto,  when  contained  in  a 
grant  of  an  estate  in  such  property,  and  made  by 
the  covenantor  expressly  for  his  assigns  or  to  the 
assigns  of  the  covenantee,  runs  with  land  so  far 
only  as  the  assigns  thus  mentioned  are  concerned. 
See  ante,  sec.  14G2. 

§  1465.  A  covenant  running  with  the  land 
binds  those  only  who  acquire  the  whole  estate  of 
the  covenantor  in  some  part  of  the  property. 

§  1466.  No  one,  merely  by  reason  of  having 
acquired  an  estate  subject  to  a  covenant  running 
with  the  land,  is  liable  for  a  breach  of  the  coven- 
ant before  he  acquired  the  estate,  or  after  he  has 
parted  with  it  or  ceased  to  enjoy  its  benefits. 

§  1467.  Where  several  persons,  holding  by  sev- 
eral titles,  are  subject  to  the  burden  or  entitled  to 
the  benefit  of  a  covenant  running  with  the  land, 
it  must  be  apportioned  among  them  according  to 
the  value  of  the  property  subject  to  it  held  by 
them  respectively,  if  such  value  can  be  ascer- 
tained, and  if  not,  then  according  to  their  respec- 
tive interests  in  point  of  quantity. 


357  EXTINCTION    OF    ObLIGATIONS.    §§  1473-1476 

TITLE  IV. 

EXTINCTION    OF    OBLIGATIONS. 

Chapter  I.    Performauce,  §§  1473-1479. 

II.    Offer  of  Performance,  §§  1485-1505. 

III.  Prevention  of  Performance  or  Offer, 

§§  1511-1515. 

IV.  Accord  and  Satisfaction,  §§  1521-1524. 

V.  Novation,  §§  1530-1533. 
VI.    Release,  §§  1541-1543. 

CHAPTER  I. 

PERFORMANCE. 

§  1473.  Obligation  extinguished  by  performance. 

§  1474.  Performance  by   one   of   several   joint   debtors. 

§  1475.  Performance   to   one   of  joint   creditors. 

§  1476.  Effect  of  directions  by  creditors. 

§  1477.  Partial  performance. 

§  1478.  Payment,  what. 

§  1479.  Application  of  general  performance. 

§  1473.  Full  performance  of  an  obligation,  by 
the  party  whose  duty  it  is  to  perform  it,  or  by  any 
other  person  on  his  behalf,  and  with  his  assent, 
if  accepted  by  the  creditor,  extinguishes  it. 

§  1474.  Performance  of  an  obligation,  by  one 
of  several  persons  who  are  jointly  liable  under  it, 
extinguishes  the  liability  of  all. 

§  1475.  An  obligation  in  favor  of  several  per- 
sons is  extinguished  by  performance  rendered  to 
any  of  them,  except  in  the  case  of  a  deposit  made 
by  owners  in  common,  or  in  joint  ownership, 
which  is  regulated  by  the  Title  on  Deposit. 

§  1476.    If  a  creditor,  or  any  one  of  two  or 
more  joint  creditors,  at  any  time  directs  the  debtor 


§§  1477-1479    EXTINCTION    OF    OBLIGATIONS.  358 

to  perform  bis  obligation  in  a  particular  manner, 
the  obligation  is  extinguished  by  performance  in 
that  manner,  even  though  the  creditor  does  not 
receive  the  benefit  of  such  performance. 

§  1477.  A  partial  performance  of  an  indivis- 
ible obligation  extinguishes  a  corresponding  pro- 
portion thereof,  if  the  benefit  of  such  perform- 
ance is  voluntarily  retained  by  the  creditor,  but 
not  otherwise.  If  such  partial  performance  is  of 
such  a  nature  that  the  creditor  cannot  avoid  re- 
taining it  without  injuring  his  own  property,  his 
retention  thereof  is  not  presumed  to  be  voluntary. 

§  1478.  Performance  of  an  obligation  for  the 
delivery  of  money  only  is  called  payment. 

§  1479.  Where  a  debtor,  under  several  obliga- 
tions to  another,  does  an  act,  by  way  of  perform- 
ance, in  Avhole  or  in  part,  which  is  equally  appli- 
cable to  two  or  more  of  such  obligations,  such  per- 
formance must  be  applied  as  follows: 

1.  If,  at  the  time  of  performance,  the  intention 
or  desire  of  the  debtor  that  such  performance 
should  be  applied  to  the  extinction  of  any  particu- 
lar obligation,  be  manifested  to  the  creditor,  it 
must  be  so  applied; 

2.  If  no  such  application  be  then  made,  the 
creditor,  within  a  reasonable  time  after  such  per- 
formance, may  apply  it  toward  the  extinction  of 
any  obligation,  performance  of  which  was  due  to 
him  from  the  debtor  at  the  time  of  such  perform- 
ance; except  that  if  similar  obligations  were  due 
to  him,  both  individually  and  as  a  trustee,  he 
must,  unless  otherwise  directed  by  the  debtor,  ap- 
ply the  performance  to  the  extinction  of  all  such 
obligations  in  equal  proportion;  and  an  application 
once  made  by  the  creditor  cannot  be  rescinded 
without  the  consent  of  [the]  debtor; 


EXTINCTION    OF    OBLIGATIONS.  §  1485 

n.  If  neitlier  party  makes  such  application  with- 
in the  time  prescribed  herein,  the  performance 
must  be  applied  to  the  extinction  of  obligations  in 
rlio  following  order;  and,  if  there  be  more  than 
OHO  obligation  of  a  particular  class,  to  the  extinc- 
liou  of  all  in  that  class,  ratably: 

'1).  Of  interest  due  at  the  time  of  the  perform- 
ance; 

(2).    Of  principal  due  at  that  time; 

(3).  Of  the  obligation  earliest  in  date  of  ma- 
turity; 

(i).  Of  an  obligation  not  secured  by  a  lien  or 
collateral  undertaliing; 

(5.)  Of  an  obligation  secured  by  a  lien  or  col- 
lateral undertaliing.  [Amendment  approved 
March  30,  1874;  Amendments  1S73-4,  239.  In  ef- 
fect July  1,  1874.] 

CHAPTER  II. 

OFFER   OF   PERFORMANCE. 

;;  1485.  Obligation  extinguished  by  offer  of  performance. 

§  1483.  Offer  of  partial  performance. 

§  1487.  By  whom  to  be  made. 

§  1488.  To  whom  to  be  made. 

§  1489.  Where  offer  may  be  made. 

§  1490.  When  offer  must  be  made. 

S  1491.  Same. 

§  1492.  Compensation  after  delay  in  performance. 

§  1493.  Offer  to  be   made  in   good  faith. 

S  1494.  Conditional   offer. 

§  1495.  Ability  and  willingness  essential. 

§  1496.  Production  of  thing  to  be   delivered  not  necessary. 

§  1497.  Thing  offered  to  be  kept  separate. 

§  1498.  Performance  of  condition  precedent. 

§  1499.  Written   receipts. 

§  1500.  Extinction  of  pecuniary  obligation. 

§  1501.  Objections    to    mode    of   offer. 

§  1502.  Title  to  thing  offered. 

§  1503.  Custody  of  thing  offered. 

§  1504.  Effect  of  offer  on  accessories  of  obligation. 

§  1.505.  Creditor's   retention   of  thing   which   he   refuses   to 
accept. 

§  1485.  An  obligation  is  extinguished  by  an 
offer  of  performance,  made  in  conformity  to  the 


§§  148G-1489    EXTINCTION    OF    OBLIGATIONS.  360 

rules  herein  prescribed,  and  with  intent  to  extin- 
jiuish  the  obligation. 

Tender  of  payment:    See  sees.  1500,  1504,  infra. 

Tender  of  article  passes  title:  Sec.  1502,  Infra; 
and  see  sec.  1504. 

Duties  of  person  making  tender:    See  sec.  1504. 

§  1486.  An  offer  of  partial  performance  is  of 
no  effect. 

§  1487.  An  offer  of  performance  must  be  made 
by  the  debtor,  or  by  some  person  on  his  behalf 
and  with  his  assent. 

§  1488.  An  offer  of  performance  must  be  made 
to  the  creditor,  or  to  any  one  of  two  or  more  joint 
creditors,  or  to  a  person  authorized  by  one  or 
more  of  them  to  receive  or  collect  what  is  due  un- 
der the  obligation,  if  such  creditor  or  authorized 
person  is  present  at  the  place  where  the  offer  may 
be  made;  and,  if  not,  wherever  the  creditor  may 
be  found.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  240.     In  effect  July  1,  1874.] 

See  next  section. 

§  1489.  In  the  absence  of  an  express  provision 
to  the  contrary,  an  offer  of  performance  may  be 
made,  at  the  option  of  the  debtor: 

1.  At  any  place  appointed  by  the  creditor;  or, 

2.  Wherever  the  person  to  whom  the  offer  ought 
to  be  made  can  be  found;  or, 

3.  If  such  person  cannot,  with  reasonable  dili- 
gence, be  found  Avithin  this  State,  and  within  a 
reasonable  distance  from  his  residence  or  place  of 
business,  or  if  he  evades  the  debtor,  then  at  his 
residence  or  place  of  business,  if  the  same  can, 
with  reasonable  diligence,  be  found  within  the 
State;  or, 

4.  If  this  cannot  be  done,  then  at  any  place 
within  this  State. 


361  EXTINCTION    OF    OBLIGATIONS.    §§  1490-1493 

Delivery  of  personalty:  See  post,  sees.  1753  et 
seq. 

§  1490.  vriiere  an  obligation  fixes  a  time  for 
its  performance,  an  offer  of  performance  must  be 
made  at  that  time,  within  reasonable  hours,  and 
not  before  nor  afterwards. 

§  1491.  "VMiere  an  obligation  does  not  fix  the 
time  for  its  performance,  an  offer  of  performance 
may  be  made  at  any  time  before  the  debtor,  upon 
a  reasonable  demand,  has  refused  to  perform. 

See  post,  sec.  1756,  as  to  giving  notice  of  time  of 
delivery  on  sales  of  personalty. 

§  1492.  Where  delay  in  performance  is  capable 
of  exact  and  entire  compensation,  and  time  has 
not  been  expressly  declared  to  be  of  the  essence 
of  the  obligation,  an  offer  of  performance,  accom- 
panied with  an  offer  of  such  compensation,  may 
be  made  at  any  time  after  it  is  due,  but  without 
prejudice  to  any  rights  acquired  by  the  creditor, 
or  by  any  other  person,  in  the  mean  time. 

§  1493.  An  offer  of  performance  must  be  made 
in  good  faith,  and  in  such  manner  as  is  most  like- 
ly, under  the  circumstances,  to  benefit  the  creditor. 

§  1494.  An  offer  of  performance  must  be  free 
from  any  conditions  which  the  creditor  is  not 
bound,  on  his  part,  to  perform. 

Offer  of  performance  upon  condition:  See  post, 
sees.  1498,  1499. 

§  1495.  An  offer  of  performance  is  of  no  effect 
if  the  person  making  it  is  not  able  and  willing  to 
perform  according  to  the  offer. 

§  1496.  The  thing  to  be  delivered,  if  any,  need 
not  in  any  case  be  actually  produced,  upon  an 
offer  of  performance  unless  the  offer  is  accepted. 

Civ.    Coc!e.-31. 


§§  1497-1502    EXTINCTION    OF    OBLIGATIONS.  362 

§  1497.  A  thiug.  wlieu  offered  by  way  of  per- 
formance must  not  be  mixed  with  other  things 
from  which  it  cannot  be  separated  immediately 
and  without  difficulty. 

Vendor  of  personalty  must  put  in  condition  for 
delivery:     Sec.  1753,  post." 

$  1498.  When  a  debtor  is  entitled  to  the  per- 
formance of  a  condition  precedent  to,  or  concur- 
rent with,  performance  on  his  part,  he  may  make 
his  offer  to  depend  upon  the  due  performance  of 
such  condition. 

Conditions  precedent:     See  ante,  sec.  1439. 

§  1499.  A  debtor  has  a  right  to  require  from 
his  creditor  a  written  receipt  for  any  property  de- 
livered in  performance  of  his  obligation. 

See  also  Code  Civ.  Proc,  sec.  2075. 

§  1500.  An  obligation  for  the  payment  of 
money  is  extinguished  by  a  due  offer  of  payment, 
if  the  amount  is  immediately  deposited  in  the 
njime  of  the  creditor,  with  some  bank  of  deposit 
within  this  State,  of  good  repute,  and  notice  there- 
of is  given  to  the  creditor. 

Tender  stopping  interest:    See  sec.  ir»04. 

§  1501.  All  objections  to  the  mode  of  an  offer 
of  performance,  which  the  creditor  has  an  oppor- 
tunity to  state  at  the  time  of  the  person  mak- 
ing tlie  otfer,  and  which  could  be  then  obviated  by 
him.  are  ^^:aived  by  the  creditor  if  not  then  stated. 

Similar  provision,  although  more  specific  in  its 
reiiuirements:    Code  Civ.  Proc.  sec.  207G. 

S  1502.  The  title  to  a  thing  duly  offered  in  per- 
formance of  an  obligation  passes  to  the  creditor, 
if  the  debtor  at  the  time  signifies  his  intention  to 
that  effect. 


t;3  EXTINCTION    OF    OBLIGATIONS.    §§  1503-1505 

S  1503.  The  person  offering  a  thing,  other  than 
money,  by  way  of  performance,  must,  if  he  means 
TO  treat  it  as  belonging  to  the  creditor,  retain  it  as 
a  depositary  for  hire,  until  the  creditor  accepts  it, ' 
or  until  he  has  given  reasonable  notice  to  the 
creditor  that  he  will  retain  it  no  longer,  and,  if 
with  reasonable  diligence  he  can  find  a  suitable 
depositary  therefor,  until  he  has  deposited  it  with 
such  person. 
Depositary  for  hire:    See  sec.   1852,  post. 

§  1504.  An  offer  of  payment  or  other  perform- 
ance, duly  made,  though  the  title  to  the  thing  of- 
fered be  not  transferred  to  the  creditor,  stops  the 
running  of  interest  on  the  obligation  and  has  the 
same  effect  upon  all  its  incidents  as  a  perform- 
ance thereof. 

Tender  transfers  title:    See  sec.  1502,  supra. 

Tender  bars  costs:    Code  Civ.  Proc,  sec.  1030. 

Eft'ect  of  offer  in  writing  is  the  same  as  ten- 
der:   Code  Civ.  Proc,  sec.  2074. 

S  1505.  If  anytliing  is  given  to  a  creditor  by 
way  of  performance,  which  he  refuses  to  accept 
as  such,  he  is  not  bound  to  return  it  without  de- 
mand; but  if  he  retains  it.  he  is  a  gratuitous  de- 
positary thereof. 

Costs  when  tender  is  made  before  suit  brought: 
Code  Civ.  Proc.  1030. 

Gratuitous  depositary:  See  sees.  1844.  post,  et 
seq. 


§§  ir.11-1512    EXTINCTION    OF    OBLIGATIONS.  364 

CIIAPTEK    III. 

PREVENTION  OF  PERFORMANCE  OR  OFFER. 

§  1511.  What  excuses  performance,  &c. 

§  1512.  Effect  of  prevention  of  performance. 

§  1513.  Same.     (Repealed.) 

§  1514.  Same. 

§  1515.  Effect  of  refusal  to  accept  performance  before  offer. 

§  1511.  The  want  of  performance  of  an  obliga- 
tion, or  of  an  offer  of  performance,  in  whole  or  in 
part,  or  any  delay  therein,  is  excused  by  the  fol- 
lowing causes,  to  the  extent  to  which  they  oper- 
ate: 

1.  When  such  performance  or  offer  is  prevented 
or  delayed  by  the  act  of  the  creditor,  or  by  the 
operation  of  law,  even  though  there  may  have 
been  a  stipulation  that  this  shall  not  be  an  excuse; 

2.  When  it  is  prevented  or  delayed  by  an  irre- 
sistible, superhuman  cause,  or  by  the  act  of  pub- 
lic enemies  of  this  State  or  of  the  United  States, 
unless  the  parties  have  expressly  agreed  to  the 
contrary;  or, 

3.  When  the  debtor  is  induced  not  to  make  it, 
by  any  act  of  the  creditor  intended  or  naturally 
tending  to  have  that  effect  done  at  or  before  the 
time  at  which  such  performance  or  offer  may  be 
made,  and  not  rescinded  before  that  time. 

Want  of  performance  excused.— Prevention  of 
performance  by  one  party  seems  to  be  regarded 
by  the  Code  in  some  instances  as  equivalent  to 
performance  as  to  the  other:     See  sec.  1512,  infra. 

Subd.  2.  See  the  maxim,  section  3526,  "No  man 
is  responsible  for  that  which  no  man  can  con- 
trol." 

§  1512.  If  the  performance  of  an  obligation  be 
prevented  by  the  creditor,  the  debtor  is  entitled 


365  EXTINCTION    OF    OBLIGATIONS.    §§  1513-1521 

to  all  the  benefits  which  he  would  have  obtained  if 
it  had  been  performed  by  both  parties.  [Amend- 
ment approved  March  30,  1874;  Amendments  1873- 
4,  240.    In  effect  July  1,  1874.] 

Prevention  by  creditor:  See  supra,  note  to  sec. 
1511. 

§  1513.  [Eepealed  March  30,  1874;  Amend- 
ments 1873-4,  240.    In  effect  July  1,  1874.] 

§  1514.  If  performance  of  an  obligation  is  pre- 
vented by  any  cause  excusing  performance,  other 
than  the  act  of  the  creditor,  the  debtor  is  entitled 
to  a  ratable  proportion  of  the  consideration  to 
which  he  would  have  been  entitled  upon  full  per- 
formance, according  to  the  benefit  which  the  credi- 
tor receives  from  the  actual  performance. 

§  1515.  A  refusal  by  a  creditor  to  accept  per- 
formance, made  before  an  offer  thereof,  is  equiva- 
lent to  an  offer  and  refusal,  unless,  before  per- 
formance is  actually  due,  he  gives  notice  to  the 
debtor  of  his  willingness  to  accept  it. 

Refusal  to  perform  entitles  the  other  party  to  en- 
force the  obligation  without  performance  on  his 
part:    See  sec.  1440,  ante. 


CHAPTER  IV. 

ACCORD  AND  SATISFACTION. 

§  1521.  Accord,  what. 

§  1522.  Effect   of  accord. 

§  1523.  Satisfaction,  what. 

§  1524.  Accord  of  liquidated  debt. 

§  1521.  An  accord  is  an  agreement  to  accept  in 
extinction  of  an  obligation,  something  different 
from  or  less  than  that  to  which  the  person  agree- 
ing to  accept  is  entitled.     [Amendment  approved 


S§  1522-1530    EXTINCTION    OF    OBLIGATIONS.  366 

March  30,  1874;  Ameudmeiits  1873-4,  240.  In  ef- 
fect Jul  J-  1,  1874.] 

See  sec.  1543,  post. 

Substituting-  a  new  obligation  for  the  existing 
one  is  a  novation:    See  post,  sec.  1530  et  seq. 

Order  on  third  person,  effect  of:  See  sec.  1533. 
post. 

§  1522.  Though  the  parties  to  an  accord  are 
bound  to  execute  it,  yet  it  does  not  extinguish  the 
obligation  until  it  is  fully  executed. 

§  1523.  Acceptance,  by  the  creditor,  of  the  con- 
sideration of  an  accord  extinguishes  the  obliga- 
tion, and  is  called  satisfaction. 

See  next  section. 

Withdrawing  acceptance:    See  sec.  1522. 

§  1524.  Part  performance  of  an  obligation, 
t'ither  before  or  after  a  breach  thereof,  when  ex- 
pressly accepted  by  the  creditor  in  writing,  in 
satisfaction,  or  rendered  in  pursuance  of  an  agree- 
ment in  writing,  for  that  purpose,  though  with- 
out any  new  consideration,  extinguishes  the  obli- 
gation. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  241.     In  effect  July  1,  1874.] 

CHAPTER  V. 

NOVATION. 

S  1530.  Novation,  what. 

S  1531.  Modes  of  novation. 

S  1532.  Novation  a  contract. 

S  1533.  Rescission  of  novation. 

§  1530.  Novation  is  the  substitution  of  a  new 
obligation  for  an  existing  one. 

See  sec.  1532.  infra. 

Right  to  sue  on  contract  made  for  one's  bene- 
fit:   See  post,  sec.  1559. 


.  ,:  EXTINCTION    OF    OBLIGATIONS.    §§  1531-1541 

§   1531.    Novation  is  made: 

1.  By  the  substitution  of  a  new  obligation  be- 
tween the  same  parties,  with  intent  to  extinguish 
the  old  obligation; 

2.  By  the  substitution  of  a  new  debtor  in  place 
of  the  old  one,  with  intent  to  release  the  latter;  or, 

3.  By  the  substitution  of  a  new  creditor  in  place 
of  the  old  one,  with  intent  to  transfer  the  rights 
of  the  latter  to  the  former. 

§  1532.  Novation  is  made  by  contract,  and  is 
subject  to  all  the  rules  concerning  contracts  in 
general. 

§  1533.  When  the  obligation  of  a  third  person, 
or  an  order  upon  such  person,  is  accepted  in  satis- 
faction, the  creditor  may  rescind  such  acceptance 
if  the  debtor  prevents  such  person  from  comply- 
ing with  the  order,  or  from  fulfilling  the  obliga- 
tion; or  if,  at  the  time  the  obligation  or  order  is 
received,  such  person  is  insolvent,  and  this  fact 
is  unknown  to  the  creditor;  or  if,  before  the  credi- 
tor can  with  reasonable  diligence  present  the  order 
to  the  person  upon  vx'hom  it  is  given,  he  becomes 
insolvent.  [Amendment  approved  March  30,  1874; 
Amendments  1873-1.  241.     In  effect  July  1,  1874.] 


CHAPTER   VI. 

RELEASE. 

§  1541.     Obligation  extinguished  by  release. 

§  1542.     Certain  claims  not  affected  by  general  release. 

§  1543.     Release  of  several  joint  debtors. 

§  1541.  An  obligation  is  extinguished  by  a  re- 
lease therefrom  given  to  the  debtor  by  the  credi- 
tor, upon  a  new  consideration,  or  in  writing,  with 
or  without  new  consideration. 

Writing  imports  n  consideration:   Sec.  1614.  post. 


§§  1542,  1543    EXTINCTION    OF    OBLIGATIONS.  368 

§  1542.  A  general  release  does  not  extend  to 
claims  which  the  creditor  does  not  linow  or  sus- 
pect to  exist  in  his  favor  at  the  time  of  executing 
the  release,  which  if  linown  bj^  him  must  have  ma- 
terially affected  his  settlement  with  the  debtor. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  241.    In  effect  July  1,  1874.] 

§  1543.  A  release  of  one  of  two  or  more  joint 
debtors  does  not  extinguish  the  obligations  of  any 
of  the  others,  unless  they  are  mere  guarantors; 
nor  does  it  affect  their  right  to  contribution  from 
him. 

Guarantor's  liability  discharged:    See  sec.  2819. 
post. 
Rights  of  sureties:    See  post.  sec.  2844. 


PART   II. 


CONTRACTS. 

Title  I.    Nature  of  a  Contract,  §§  1549-1615. 

II.    Manner  of  creating    Contracts,    §§  1619- 
1629. 

III.  Interpretation  of  Contracts,  §§  1635-1661. 

IV.  Unlawful  Contracts,  §§  1667-1676. 

V.    Extinction  of  Contracts,  §§  1682-1701. 


TITLE  I. 

NATURE    OF   A   CONTRACT. 

Chapter  I.  Definition,  §§  1549-1550. 

II.  Parties.  §§  1556-1559. 

III.  Consent,   §§   1565-1589. 

IV.  Object,  §§  1595-1599. 

V.    Consideration,  §§  1605-1615. 


CHAPTER  I. 

DEFINITION. 

§  1549.     Contract,   what. 

§  1550.    Essential  elements  of  contract. 

§  1549.    A  contract  is  an  agreement  to  do  or 
not  to  do  a  certain  thing. 

§  1550.    It  is  essential  to  the  existence  of  a  con- 
tract that  there  should  be: 


§§  1556-1559  NATURE    OF   CONTRACT.  370 

1.  rarties  capable  of  coutracting; 

2.  Their  consent; 

3.  A  lawful  object;  and, 

4.  A  sufficient  cause  or  consideration. 
Consent:     See  sees.  1565  et  seq. 
Unlawful  contracts:    See  sec.  1667,  post. 
Consideration:    See  sees.  1605  et  seq.,  post. 


CHAPTER  II. 

PARTIES. 

§  1556.     Who  may  contract. 
§  1557.     Minors,    &c. 

§  1558.     Identification   of   parties   necessary. 
§  1559.    When   contract  for  benefit  of  third  person   may  be 
enforced. 

§  1556.  All  persons  are  capable  of  contracting, 
except  minors,  persons  of  unsound  mind,  and  per- 
sons deprived  of  civil  rights. 

Contracts  of  infants:    See  ante,  sees.  33  et  seq. 

Contracts  of  persons  of  unsound  mind:  See 
ante,  sees.  38  et  seq. 

Contracts  of  married  women:  See  ante,  sees. 
158,  159,  167. 

§  1557.  Minors  and  persons  of  unsound  mind 
have  only  such  capacity  as  is  defined  by  Part  I. 
of  Division  I.  of  this  Code. 

See  ante,  sees.  83  et  seq. 

{^  1558.  It  is  essential  to  the  validity  of  a  con- 
tract, not  only  that  the  parties  should  exist,  but 
that  it  should  be  possible  to  identify  them. 

§  1559.  A  contract,  made  expressly  for  the 
benefit  of  a  third  person  may  be  enforced  by  him 
at  any  time  before  tlie  i)arties  thereto  rescind  it. 


371  NATURE   OF   CONTRACT.  §§  1565,  1566 

CHAPTER  III. 

CONSENT. 

§  1565.  Essentials  of  consent. 

§  1566.  Consent,  when  voidable. 

§  1567.  Apparent  consent,  when  not  free. 

§  1568.  When  deemed  to  have  been  obtained  by  fraud,   &c. 

S  1569.  Duress,    what. 

§  1570.  Menace,    what. 

S  1571.  Fraud,  actual  or  constructive. 

§  1572.  Actual   fraud,   what. 

§  1573.  Constructive  fraud. 

§  1574.  Actual    fraud   a    question    of    fact. 

S  1575.  Undue  influence,  what. 

§  1576.  Mistake,    what. 

§  1577.  Mistake   of   fact. 

§  1578.  Mistake  of  law. 

§  1579.  Mistake  of  foreign  laws. 

§  1580.  Mutuality  of  consent. 

S  1581.  Communication   of   consent. 

§  1582.  Mode  of  communicating  acceptance  of  proposal. 

§  1583.  When  communication  deemed  complete. 

§  1584.  Acceptance  by  performance  of  conditions. 

§  1585.  Acceptance  must  be  absolute. 

§  1586.  Revocation  of  proposal. 

§  1587.  Revocation,  how  made. 

§  1588.  Ratification  of  contract,  void  for  want  of  consent. 

§  1589.  Assumption  of  obligation  by  acceptance  of  benefits. 

§  1565.  The  couseut  of  the  parties  to  a  contract 
must  be: 

1.  Free; 

2.  Mutual;  and, 

3.  Communicated  by  each  to  the  other. 
Consent,  when  not  free,  and  effect:    Sees.  1566, 

1567,  infra. 

Consent,  when  not  mutual:    See  sec.  1580. 

Consent,  how  communicated:  See  infra,  sees. 
1581  et  sea. 

§  1566.  A  consent  which  is  not  free  is  never- 
theless not  absolutely  void,  but  may  be  rescinded 
by  the  parties  in  the  manner  prescribed  by  the 
Chapter  on  Rescission. 


§§1567-1570  NATURE   OF   CONTRACT.  372 

Rescission  of  contracts:  See  post,  sees.  1688  et 
seq. 

§  1567.  An  apparent  consent  is  not  real  or  free 
when  obtained  through: 

1.  Duress; 

2.  Menace; 

3.  Fraud; 

4.  Undue  influence;  or, 

5.  Mistake. 

Duress  defined:     Sec.  1569. 
Menace  defined:   Sec.  1570. 
Fraud  defined:    Sec.  1571. 
Undue  influence  defined:    Sec.  1575. 
Mistake  defined:    Sees.  1576,  1577. 

§  1568.  Consent  is  deemed  to  have  been  ob- 
tained tlirouiih  one  of  the  causes  mentioned  in  the 
last  section  only  Avhen  it  would  not  have  been 
sriven  had  such  cause  not  existed. 

§  1569.    Duress  consists  in: 

1.  Unlawful  confinement  of  the  person  of  the 
party,  or  of  the  husband  or  wife  of  such  party, 
or  of  an  ancestor,  descendant,  or  adopted  child  of 
such  party,  husband,  or  wife; 

2.  Unlawful  detention  of  the  property  of  any 
such  person;  or, 

3.  Confinement  of  such  person,  lawful  in  form, 
but  fraudulently  obtained,  or  fraudulently  made 
unjustly  harassing  or  oppressive. 

The  unlawful  imprisonment  of  an  adopted  child 
as  duress  is  said  by  the  Code  Commissioners  to  be 
a  "new  provision,  but  in  accordance  with  the  title 
on  adoption":    See  ante,  sec.  221  et  seq. 

§  1570.    Menace  consists  in  a  threat: 
1.    Of  such  duress  as  is  specified  in  subdivisions 
1  and  3  of  the  last  section; 


373  NATURE    OF    CONTRACT.  §§  1571-1573 

2.  Of  unlawful  and  violent  injury  to  the  person 
or  property  of  any  such  person  as  is  specified  in 
the  last  section;  or, 

3.  Of  injury  to  the  character  of  any  such  per- 
son, 

§  1571.    Fraud  is  either  actual  or  constructive. 

§  1572.  Actual  fraud,  within  the  meaning  of 
this  chapter,  consists  in  any  of  the  following  acts, 
committed  by  a  party  to  the  contract,  or  with  his 
connivance,  with  intent  to  deceive  another  party 
thereto,  or  to  induce  him  to  enter  into  the  con- 
tract: 

1.  The  suggestion,  as  a  fact,  of  that  which  is 
not  true,  by  one  who  does  not  believe  it  to  be 
true; 

2.  The  positive  assertion  in  a  manner  not  war- 
ranted by  the  information  of  the  person  making 
it,  of  that  which  is  not  true,  though  he  believes  it 
to  be  true; 

3.  The  suppression  of  that  which  is  true,  by  one 
having  knowledge  or  belief  of  the  fact; 

4.  A  promise  made  without  any  intention  of 
performing  it;  or, 

5.  Any  other  act  fitted  to  deceive. 
Fraudulent  conveyance  a  misdemeanor:     Penal 

Code,  sec.  531. 

Fraudulent  instruments  and  transfers:  See  sec. 
3439,  post. 

Rescission  of  contracts  for  fraud:  See  post,  sec. 
1688. 

Deceit:  See  post,  sees.  1709,  1710. 

§  1573.  Constructive  fraud  consists: 
1.  In  any  breach  of  duty  which,  without  an  ac- 
tually fraudulent  intent,  gains  an  advantage  to 
the  person  in  fault,  or  any  one  claiming  under 
him,  by  misleading  another  to  his  prejudice,  or  to 
the  prejudice  of  any  one  claiming  under  him;  or, 

Civ.    Code. -32. 


5!§  1574-157.S  NATURE    OF   CONTRACT.  374 

2.  In  any  such  act  or  omission  as  the  law  spe- 
cially declares  to  be  fraudulent,  without  respect 
to  actual  fraud. 

§  1574.  Actual  fraud  is  always  a  question  of 
fact. 

§  1575.    Undue  influence  consists: 

1.  In  the  use,  by  one  in  whom  a  confidence  is 
reposed  by  another,  or  who  holds  a  real  or  appar- 
ent authority  over  him,  of  such  confidence  or 
authority  for  the  purpose  of  obtaining  an  unfair 
advantage  over  him; 

2.  In  talcing  an  unfair  advantage  of  another's 
weakness  of  mind;  or, 

3.  In  taking  a  grossly  oppressive  and  unfair  ad- 
vantage of  another's  necessities  or  distress. 

Undue  influence  vitiating  will:  See  sec.  1272, 
ante. 

Undue  influence  as  affecting  validity  of  wills: 
See  ante,  sec.  1272. 

Rescission  of  contracts:    See  post,  sec.  1G89. 

§  1576.    Mistake  may  be  either  of  fact  or  law. 

§  1577.  Mistake  of  fact  is  a  mistake,  not  caus- 
ed by  the  neglect  of  a  legal  duty  on  the  part  of 
the  person  making  the  mistake,  and  consisting  in: 

1.  An  unconscious  ignorance  or  forgetfulness 
of  a  fact  past  or  present,  material  to  the  contract; 
or. 

2.  Belief  in  the  present  existence  of  a  thing  ma- 
terial to  the  contract,  which  does  not  exist,  or  in 
the  past  existence  of  such  a  thing,  which  has  not 
existed. 

§  1578.  Mistake  of  law  constitutes  a  mistake, 
within  the  meaning  of  this  article,  only  when  it 
arises  from: 

1.    A  misapprehension  of  the  law  by  all  parties. 


375  NATURE    OP^    CONTRACT.  §§  1579-1584 

all  supposing-  that  they  knew  aud  understood  it, 
and  all  making  substantiallj'  the  same  mistake  as 
to  the  law;  or, 

2.  A  misapprehension  of  the  law  by  one  party, 
of  which  the  others  are  aware  at  the  time  of  con- 
tracting, but  which  they  do  not  rectify. 

§  1579.  Mistake  of  foreign  laws  is  a  mistake 
of  fact. 

P^oreign  laws,  how  proved:  See  Code  Civ.  Proc, 
sees.  1900,  1901. 

§  1580.  Consent  is  not  mutual,  unless  the  par- 
ties all  agree  upon  the  same  thing  in  the  same 
sense.  But  in  certain  cases  defined  by  the  Chap- 
ter on  Interpretation,  they  are  to  be  deemed  so  to 
agree  without  regard  to  the  fact. 

Interpretation  of  contracts:  See  post.  sees.  1635 
et  sea. 

§  1581.  Consent  can  be  communicated  with  ef- 
fect only  by  some  act  or  omission  of  the  party  con- 
tracting, by  which  he  intends  to  communicate  it, 
or  which  necessarily  tends  to  such  communication. 

§  1582.  If  a  proposal  prescribes  any  conditions 
concerning  the  communication  of  its  acceptance, 
the  proposer  is  not  bound  unless  they  are  con- 
formed to;  but  in  other  cases  any  reasonable  and 
usual  mode  may  be  adopted. 

S  1583.  Consent  is  deemed  to  be  fully  commu- 
nicated betAveen  the  parties  as  soon  as  the  party 
accepting  a  proposal  has  put  his  acceptance  in  the 
course  of  transmission  to  the  proposer,  in  conform- 
ity to  the  last  section. 

§  1584.  Performance  of  the  conditions  of  a  pro- 
posal, or  the  acceptance  of  the  consideration  of- 
fered with  a  proposal,  is  an  acceptance  of  the  pro- 
posal. 


§§  1585-1589  NATURE    OF   CONTRACT.  376 

§  1585.  An  acceptance  must  be  absolute  and 
unqualified,  or  must  include  in  itself  an  accept- 
ance of  that  character  which  the  proposer  can 
separate  from  the  rest,  and  which  will  conclude 
the  person  accepting.  A  qualified  acceptance  is 
a  new  proposal. 

§  1586.  A  proposal  may  be  revoked  at  any- 
time before  its  acceptance  is  communicated  to  the 
proposer,  but  not  afterwards. 

§  1587.    A  proposal  is  revoked: 

1.  By  the  communication  of  notice  of  revocation 
by  the  proposer  to  the  other  party,  in  the  manner 
prescribed  by  sections  1581  and  1583,  before  his 
acceptance  has  been  communicated  to  the  former; 

2.  By  the  lapse  of  the  time  prescribed  in  such 
proposal  for  its  acceptance,  or  if  no  time  is  so 
prescribed,  the  lapse  of  a  reasonable  time  with- 
out communication  of  the  acceptance. 

3.  By  the  failure  of  the  acceptor  to  fulfill  a  con- 
dition precedent  to  acceptance;  or, 

4.  By  the  death  or  insanity  of  the  proposer. 

§  1588,  A  contract  which  is  voidable  solely  for 
want  of  due  consent  may  be  ratified  by  a  subse- 
quent consent, 

§  1589.  A  voluntary  acceptance  of  the  benefit 
of  a  transaction  is  equivalent  to  a  consent  to  all 
the  obligations  arising  from  it,  so  far  as  the  facts 
are  known,  or  ought  to  be  known,  to  the  person 
accepting. 


377  NATURE    OF    CONTRACT.  §§  1595-1599 

CHAPTER   IV. 

OBJECT  OF  A  CONTRACT. 

§  1595.  Object,    what. 

§  1596.  Requisites  of  object. 

§  1597.  Impossibility,    what. 

§  1598.  When  contract  wholly  void. 

§  1599.  When  contract  partially  void. 

§  1595.  Tlie  object  of  a  contract  is  the  thing 
which  it  is  agreed,  on  the  part  of  the  party  re- 
ceiving the  consideration,  to  do  or  not  to  do. 

L'nlawful  contracts:  See  next  section,  and  sees. 
1667  et  seq.,  post. 

Unlawful  conditions:    See  ante,  sec.  1441. 

§  1596.  The  object  of  a  contract  must  be  law- 
ful when  the  contract  is  made,  and  possible  and 
ascertainable  by  the  time  the  contract  is  to  be  per- 
formed. 

See  post,  sees.  1667  et  seq. 

§  1597.  Everything  is  deemed  possible  except 
that  which  is  impossible  in  the  nature  of  things. 

§  1598.  Where  a  contract  has  but  a  single  ob- 
ject, and  such  object  is  unlawful,  whether  in 
whole  or  in  part,  or  wholly  impossible  of  perform- 
ance, or  so  vaguely  expressed  as  to  be  wholly  un- 
ascertainable,  the  entire  contract  is  void. 

§  1599.  Where  a  contract  has  several  distinct 
objects,  of  which  one  at  least  is  lawful,  and  one 
at  least  is  unlawful,  in  whole  or  in  part,  the  con- 
tract is  void  as  to  the  latter  and  valid  as  to  the 
rest. 


§S  1605-1308  NATURE    OF    CONTRACT.  378 

CHAPTPJR  V. 

CONSIDERATION. 

§  1605.     Good  consideration,  what. 

§  1606.  How  far  legal  or  moral  obligation  is  a  good  consid- 
eration. 

§  1607.     Consideration  lawful. 

§  1608.     Effect    of    illegality. 

§  1609.     Consideration  executed  or  executory. 

§  1610.     Executory  consideration. 

§  1611.    How  ascertained. 

§  1612.     Effect  of  impossibility  of  ascertaining  consideration. 

§  1613.     Same. 

§  1614.  Written  instrument  presumptive  evidence  of  consid- 
eration. 

§  1615.  Burden  of  proof  to  invalidate  suflBcient  considera- 
tion. 

§  1605.  Any  benefit  conferred,  or  agreed  to  be 
conferred,  upon  the  promisor,  by  any  other  person, 
to  which  the  promiser  is  not  lawfully  entitled,  or 
any  prejudice  suffered,  or  agreed  to  be  suffered, 
by  such  person,  other  than  such  as  he  is  at  the 
time  of  consent  lawfully  bound  to  suffer,  as  an  in- 
ducement to  the  promisor,  is  a  good  consideration 
for  a  i)romise. 

§  1606.  An  existing  legal  obligation  resting  up- 
on the  promisor,  or  a  moral  obligation  originating 
in  some  benefit  conferred  upon  the  promisor,  or 
prejudice  suffered  by  the  promisee,  is  also  a  good 
consideration  for  a  promise,  to  ah  extent  corres- 
ponding with  the  extent  of  the  obligation,  but  no 
further  or  otherwise. 

§  1607.  The  consideration  of  a  contract  must 
be  lawful  within  the  meaning  of  section  1667. 

Illegal  consideration:  See  unlawful  contracts, 
see  1667,  post. 

§  1608.  If  any  part  of  a  single  consideration 
for  one  or  more  objects,  or  of  several  considern- 


379  NATURE    OF    CONTRACT.  §§  1609-1615 

tions  for  a  single  object,  is  iiulawfiil.  the  entire 
contract  is  void. 

S  1609.  A  consideration  may  be  executed  or 
executory  in  whole  or  in  part.  In  so  far  as  it  is 
executory  it  is  subject  to  the  provisions  of  Chapter 
IV.  of  this  title. 

§  1610.  When  a  consideration  is  executory,  it 
is  not  indispensable  that  the  contract  should  spec- 
ify its  amount  or  the  means  of  ascertaining  it. 
It  may  be  left  to  the  decision  of  a  third  person, 
or  regulated  by  any  specified  standard. 

§  1611.  When  a  contract  does  not  determine 
tlie  amount  of  the  consideration,  nor  the  method 
by  which  it  is  to  be  ascertained,  or  when  it  leaves 
the  amoimt  thereof  to  the  discretion  of  an  inter- 
ested party,  the  consideration  must  be  so  much 
money  as  the  object  of  the  contract  is  reasonably 
worth. 

See  following  sections. 

ij  1612.  Where  a  contract  provides  an  exclu- 
sive method  by  which  its  consideration  is  to  be 
ascertained,  wliich  method  is  on  its  face  impossi- 
ble of  execution,  the  entire  contract  is  void. 

s  1613.  Where  a  contract  provides  an  exclusive 
method  by  which  its  consideration  is  to  be  ascer- 
tained, which  method  appears  possible  on  its  face, 
but  in  fact  is,  or  becomes  impossible  of  execution, 
such  provision  only  is  void. 

S  1614.  A  written  instrument  is  presumptive 
evidence  of  a  consideration. 

Distinction  between  sealed  and  unsealed  instru- 
ments abolished:    See  post,  sec.  1629. 

§  1615.  The  burden  of  showing  a  want  of  con- 
sideration sufficient  to  support  an  instrument  lies 
with  the  party  seeking  to  invalidate  or  avoid  it. 


§§  1619-1623   MANNER    OF    CREATING    CONTRACTS.       380 

TITLE  11. 

MANNER    OF    CREATING    CONTRACTS. 

§  1619.  Contracts,  express  or  implied. 

§  1620.  Express  contract,  what. 

§  1621.  Implied  contract,  what. 

§  1622.  What   contracts   may   be   oral. 

§  1623.  Contract  not  in  writing  through  fraud,   may  be  en- 
forced against  fraudulent  party. 

§  1624.  What  contracts  must  be  written. 

§  1625.  Effect  of  writing. 

§  1626.  Contract   in    writing,-  takes   effect   when. 

§  1627.  Provisions  of  chapter  on  transfers  of  real  property. 

§  1628.  Corporate  seal,   how  affixed. 

§  1329.  Provisions  abolishing  seals  made  applicable. 

§   1619.    A  contract  is  either  express  or  implied. 

§  1620.  xVn  express  contract  is  one,  the  terms 
of  which  are  stated  in  words. 

§  1621.  An  implied  contract  is  one,  the  exist- 
ence and  terms  of  which  are  manifested  by  con- 
duct. 

Obligatio  s  imposed  by  hnv:  Sec.  1708,  post. 

§  1622.  All  contracts  may  be  oral,  except  such 
as  are  specially  required  by  statute  to  be  in  writ- 
ing. 

Contracts,  when  to  be  in  writing:  See  infra 
sees.  1(323,  1624;  Code  Civ.  Proc,  sees.  1971-1974. 

§  1623.  Where  a  contract,  which  is  required  by 
law  to  be  in  writing,  is  prevented  from  being  put 
into  writing  by  the  fraud  of  a  party  thereto,  any 
other  party  who  is  by  such  fraud  led  to  believe 
that  it  is  in  writing,  and  acts  upon  such  belief  to 
liis  prejudice,  may  enforce  it  against  the  fraudu- 
lent party. 

Code  Civ.  Proc.  sees.  1971-1974. 


381  MANNER    OF    CREATING    CONTRACTS.        §  1624 

§  1624.  The  following  contracts  are  invalid, 
unless  the  same,  or  some  note  or  memorandum 
thereof,  be  in  writing  and  subscribed  by  the  par- 
ty to  be  charged,  or  by  his  agent: 

1.  An  agreement  that  by  its  terms  is  not  to  be 
performed  within  a  year  from  the  making  thereof; 

2.  A  special  promise  to  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another,  except  in  the 
cases  provided  for  in  section  twenty-seven  hun- 
dred and  ninety-four  of  this  Code; 

3.  An  agrement  made  upon  consideration  of 
marriage  other  than  a  mutual  promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chat- 
tels, or  things  in  action,  at  a  price  not  less  than 
two  hundred  dollars,  unless  the  buyer  accept  or 
receive  part  of  such  goods  and  chattels,  or  the 
evidences,  or  some  of  them,  of  such  things  in  ac- 
tion, or  pay  at  the  time  some  part  of  the  purchase- 
money;  but  when  a  sale  is  made  at  auction,  an  en- 
try by  the  auctioneer  in  his  sale  book,  at  the  time 
of  the  sale,  of  the  kind  of  property  sold,  the  terms 
of  the  sale,  the  price,  and  the  names  of  the  pur- 
chaser and  person  on  whose  account  the  sale  is 
made,  is  a  sufficient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer 
period  than  one  year,  or  for  the  sale  of  real  prop- 
erty, or  of  an  interest  therein;  and  such  agree- 
ment, if  made  by  an  agent  of  the  party  sought  to 
be  charged,  is  invalid,  unless  the  authority  of  the 
agent  be  in  writing,  subscribed  by  the  party 
sought  to  be  charged; 

P).  An  agreement  authorizing  or  employing  an 
agent  or  broker  to  purchase  or  sell  real  estate  for 
compensation  or  a  commission,  [Amendment  ap- 
proved March  9,  1878;  Amendments  1877-8.  In  ef- 
fect sixty  days  after  passage,] 

Code  Civ,  Troc,  sees,  1971-1974, 

See  post,  sec,  1798. 

Guaranty:    See  post,  sec.  2793. 

Sales  of  personalty:    See  sec,  1739,  post. 


§§  1625-1629   MANNER   OF   CREATING    CONTRACTS.        382 

Agent,  how  appointed:    See  post,  sec.  1741. 

Fraudulent  transfers:  See  post.  sees.  3439  et 
seq. 

Sales  of  personalty:    See  post,  sees.  1739  et  seq. 

Guaranty:   See  post,  sees.  2787,  2793  et  seq. 

I'art  performance  taking  case  out  of  statute:  See 
post,  sec.  1741. 

§  1625.  The  execution  of  a  contract  in  writing, 
whether  the  law  requires  it  to  be  written  or  not, 
supersedes  all  the  oral  negotiations  or  stipulations 
concerning  its  matter  Tvhich  preceded  or  accom- 
panied the  execution  of  the  instrument. 

Code  Civ.  Proc,  sees.  1971-1974. 

Writing  supersedes  oral  stipulations:  See  post, 
sec.  1639. 

§  1626.  A  contract  in  writing  takes  effect  upon 
its  delivery  to  the  party  in  Avhose  favor  it  is  made, 
or  to  his  agent. 

Delivery  of  transfers  in  writing:  See,  generally, 
ante,  sec.  1054. 

§  1627.  The  provisions  of  the  Chapter  on 
Transfers  in  General,  concerning  the  delivery  of 
grants,  absolute  and  conditional,  apply  to  all  writ- 
ten contracts. 

See  ante,  sees.  1052  et  seq. 

§  1628.    A   corporate   or   official    seal     may    be 

affixed  to  an  instrument  by  a  mere  impression 

upon  the  paper  or  other  material  on  which  such 

instrument  is  written. 

See  Code  Civ.  I*roc.,  sec.  14;  Polit.  Code,  sec.  14. 

§  1629.  All  distinctions  between  sealed  and  un- 
sealed instruments  are  abolished. 


v;  INTERPRETATION    OF    CONTRACTS.    §§  1635-1637 

TITLE  III. 
INTERPRETATION   OF   CONTRACTS. 

§  1635.  Uniformity  of  interpretation. 

§  1636.  Contracts,  how  to  be  interpreted. 

§  1637.  Intention  of  parties,  how  ascertained. 

§  1638.  Intention  to  be  ascertained  from  language. 

§  1639.  Interpretation  of  written  contracts. 

§  1640.  Writing,    when    disregarded. 

§  1641.  Effect   to   be   given   to  every  part    of   contract. 

§  1642.  Several  contracts,  when  taken  together. 

!}  1643.  Interpretation  in  favor  of  contract. 

§  1644.  Words    to    be    understood    in    usual    sense. 

§  1645.  Technical   words. 

§  1646.  Law    of   place. 

§  1647.  Contracts  explained  by  circumstances. 

§  1648.  Contract  restricted  to  its  evident  object. 

§  1649.  Interpretation  in  sense  in   which  promisor  believed 

promisee  to  rely. 

§  16.50.  Particular   clause   subordinate   to   general   intent. 

§  1>51.  Contract,    partly    written    and    partly    printed. 

J  1652.  Repugnancies,    how  reconciled. 

§  16.53.  Inconsistent  words  rejected. 

$  1654.  Words  to  be  taken  most  strongly  against  whom. 

§  16.55.  Reasonable  stipulations,  when  implied. 

5  1656.  Necessary  incidents  implied. 

?  16-57.  Time  of  performance  of  contract. 

.5  1658.  Time,  when  of  essence.     (Repealed.) 

§  16.59.  When  joint  and  several. 

^  1660.  Same. 

§  1661.  Executed  and  executory  contracts,  what. 

§  1635.  All  contracts  whether  public  or  priv- 
ate, are  to  be  interpreted  by  the  same  rules,  ex- 
cept as  otherwise  provided  by  this  Code. 

§  1636.  A  contract  must  be  so  interpreted  as 
to  give  effect  to  the  mutual  intention  of  the  par- 
ties as  it  existed  at  the  time  of  contracting,  so 
far  as  the  same  is  ascertainable  and  lawfuf. 

Parol  evidence  to  prove  intention:  See  Code  Civ. 
Proc,  sees.  1855  et  seq. 

§  1637.  For  the  purpose  of  ascertaining-  the  in- 
tention of  the  parties  to  a  contract,  if  otherwise 


§§  1638-1644    INTERPRETATION    OF    CONTRACTS.  384 

doubtful,  the  rules  given  in  this  chapter  are  to  be 
applied. 

Parol  evidence  with  respect  to  writings:  See 
Code  Civ.  Proc,  sees.  1855,  1856,  et  seq. 

§  1638.  The  language  of  a  contract  is  to  gov- 
ern its  interpretation,  if  the  language  is  clear  and 
explicit,  and  does  not  involve  an  absurdity. 

§  1639.  When  a  contract  is  reduced  to  writing, 
the  intention  of  the  parties  is  to  be  ascertained 
from  the  writing  alone,  if  possible;  subject,  how- 
ever, to  the  other  provisions  of  this  title. 

Parol  evidence  in  construing  writings:  See  Code 
Civ.  Proc,  sees.  1855  et  seq.  See  also  post,  sec. 
1689. 

§  1640.  When,  through  fraud,  mistake,  or  ac- 
cident, a  written  contract  fails  to  express  the  real 
intention  of  the  parties,  such  intention  is  to  be  re- 
garded, and  the  erroneous  parts  of  the  writing 
disregarded. 

See  Code  Civ.  Proc,  sec.  1856. 

§  1641.  The  whole  of  a  contract  is  to  be  taken 
together,  so  as  to  give  effect  to  every  part,  if  rea- 
sonably practicable,  each  clause  helping  to  inter- 
pret the  other. 

§  1642.  Several  contracts  relating  to  the  same 
matters,  between  the  same  parties,  and  made  as 
parts  of  substantially  one  transaction,  are  to  be 
taken  together. 

§  1643.  A  contract  must  receive  such  an  inter- 
pretation as  will  make  it  lawful,  operative,  defi- 
nite, reasonable,  and  capable  of  being  carried  into 
effect,  if  it  can  be  done  without  violating  the 
intention  of  the  parties. 

§  1644.    The  words  of  a  contract  are  to  be  un- 


385  INTERPRETATION    OF    CONTRACTS.    §§  1645-1651 

derstood  in  their  ordinary  and  popular  sense,  rath- 
er than  according  to  their  strict  legal  meaning; 
unless  used  by  the  parties  in  a  technical  sense, 
or  unless  a  special  meaning  is  given  to  them  by 
usage,  in  which  case  the  latter  must  be  followed. 

§  1645.  Technical  words  are  to  be  interpreted 
as  usually  understood  by  persons  in  the  profes- 
sion or  business  to  which  they  relate,  unless  clear- 
ly used  in  a  different  sense. 

§  1646.  A  contract  is  to  be  interpreted  accord- 
ing to  the  law  and  usage  of  the  place  where  it  is 
to  be  performed;  or,  if  it  does  not  indicate  a  place 
of  performance,  according  to  the  law  and  usage 
of  the  place  where  it  is  made. 

Code  Civ.  Proc,  sec.  1870,  subd.  12. 

§  1647.  A  contract  may  be  explained  by  refer- 
ence to  the  circumstances  under  which  it  was 
made,  and  the  matter  to  which  it  relates. 

§  1648.  However  broad  may  be  the  terms  of  a 
contract,  it  extends  only  to  those  things  concern- 
ing which  it  appears  that  the  parties  intended  to 
contract. 

Code  Civ.  Proc,  sec.  1864. 

§  1649.  If  the  terms  of  a  promise  are  in  any 
respect  ambiguous  or  uncertain,  it  must  be  inter- 
preted in  the  sense  in  which  the  promisor  believ- 
ed, at  the  time  of  making  it,  that  the  promisee 
understood  it. 

Which  construction  preferred:  Code  Civ.  Proc, 
sec.  1864. 

§  1650.    Particular   clauses   of   a   contract   are 
subordinate  to  its  general  intent. 
See  infra,  sees.  1652,  1653. 

§  1651.    Where  a  contract  is  partly  written  and 

Civ.    Code.— 33. 


§§  1652-1653    INTERPRETATION    OP    CONTRACTS.  386 

partly  printed,  or  where  part  of  it  is  written  or 
printed  under  tlie  special  directions  of  the  parties, 
and  with  a  special  view  to  their  intention,  and  the 
remainder  is  copied  from  a  form  originally  pre- 
pared without  special  reference  to  the  particular 
parties  and  the  particular  contract  in  question, 
the  written  parts  control  the  printed  parts,  and 
the  parts  which  are  purely  original  control  those 
which  are  cojiied  from  a  form.  And  if  the  two  are 
nbsolutely  repugnant,  the  latter  must  be  so  far 
disregarded. 

§  1652.  liepugnancy  in  a  contract  must  be  rec- 
onciled, if  possible,  by  such  an  interpretation  as 
will  give  some  effect  to  the  repugnant  clauses, 
subordinate  to  the  general  intent  and  purpose  of 
The  whole  contract. 

i^  1653.  Words  in  a  contract  which  are  wholly 
inconsistent  with  its  nature,  or  with  the  main  in- 
tention of  the  parties,  are  to  be  rejected. 

§  1654.  In  cases  of  uncertainty  not  removed  by 
the  preceding  rules,  the  language  of  a  contract 
should  be  interpreted  most  strongly  against  the 
party  who  caused  the  uncertainty  to  exist.  The 
promisor  is  presumed  to  be  such  party;  except  in 
a  contract  between  a  public  officer  or  body,  as 
such,  and  a  private  party,  in  which  it  is  presumed 
that  all  uncertainty  was  caused  by  the  private 
party. 

§  1655.  Stipulations  which  are  necessary  to 
make  a  contract  reasonable,  or  conformable  to 
usage,  are  implied,  in  respect  to  matters  concern- 
ing which  the  contract  manifests  no  contrary  in- 
tention. 

§  1656.  All  things  that  in  law  or  usage  are  con- 
sidered as  incidental  to  a  contract,  or  as  necessary 
to  carry  it  into  effect  are  implied  therefrom,  un- 


387  INTERPRETATION    OF    CONTRACTS.    §§  1657-1661 

less  some  of  them  are  expressly  mentioned  there- 
in, when  all  other  things  of  the  same  class  are 
deemed  to  be  excluded. 

§  1657.  If  no  time  is  specified  for  the  perform- 
ance of  an  act  required  to  be  performed,  a  rea- 
sonable time  is  allowed.  If  the  act  is  in  its  nature 
capable  of  being  done  instantly,— as,  for  example, 
if  it  consists  in  the  payment  of  money  only,— it 
must  be  performed  immediately  upon  the  thing  to 
be  done  being  exactly  ascertained. 

§  1658.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  242.    In  effect  July  1,  1874.] 

§  1659.  Where  all  the  parties  who  unite  in  a 
promise  receive  some  benefit  from  the  considera- 
tion, whether  past  or  present,  their  promise  is  pre- 
sumed to  be  joint  and  several. 

Contracts,  joint  and  several:  See  ante,  sees.  1430 
et  seq. 

§  1660.  A  promise,  made  in  the  singular  num- 
ber, but  executed  by  several  persons,  is  presumed 
to  be  joint  and  several. 

§  1661.  An  executed  contract  is  one,  the  object 
of  which  is  fully  performed.  All  others  are  ex- 
ecutory. 


§§  16K7-1670  UNLAWFUL   CONTRACTS.  388 

TITLE  IV. 

UNLAWFUL  CONTRACTS. 

§  1667.  What  is  unlawful. 

§  1668.  Certain  contracts  unlawful. 

§  1639.  Penalties  void.     (Repealed.) 

§  1670.  Contract  fixing  damages,  void. 

§  1671.  Exception. 

§  1672.  Restraints  upon  legal  proceedings.     (Repealed.) 

§  1673.  Contract  in  restraint  of  trade,  void. 

§  1674.  Exception  in  favor  of  sale  of  good  will. 

§  1675.  Exception   in   favor  of  partnership   arrangements. 

§  1676.  Contract  in  restraint  of  marriage,   void. 

§  1667.    That  is  not  lawful  which  is: 

1.  Contrary  to  an  express  provision  of  law; 

2.  Contrary  to  the  policy  of  express  law,  though 
not  expressly  prohibited;  or, 

3.  Otherwise  contrary  to  good  morals. 

Act  to  prevent  combinations  to  obstruct  the  sale 
of  livestock:  See  post,  Appendix,  p. 

Contracts  in  restraint  of  trade:  See  sec.  1673, 
infra. 

Contracts  in  restraint  of  marriage:  See  sec.  1676, 
infra. 

Conditions,  when  void:  See  ante,  sees.  709,  710, 
711. 

§  1668.  All  contracts  which  have  for  their  ob- 
ject, directly  or  indirectly,  to  exempt  any  one  from 
responsibility  for  his  own  fraud,  or  willful  injury 
to  the  person  or  property  of  another,  or  violation 
of  law.  whether  willful  or  negligent,  are  against 
the  policy  of  the  law. 

§  1669.  [Repealed  March  30,1874;  Amendments 
1873-4,  242.    In  effect  July  1,  1874.] 

§  1670.  Every  contract  by  which  the  amount 
of  damage  to  be  paid,  or  other  compensation  to  be 
made,  for  a  breach  of  an  obligation,  is  determined 
in  anticipation  thereof,  is  to  that  extent  void,  ex- 
cept as  expressly  provided  in  the  next  section. 


389  UNLAWFUL  CONTRACTS.  §§  1671-1676 

§  1671.  The  parties  to  a  contract  may  agree 
therein  upon  an  amount  which  shall  be  presumed 
to  be  the  amount  of  damage  sustained  by  a 
breach  thereof,  when,  from  the  nature  of  the  case, 
it  would  be  impracticable  or  extremely  difficult  to 
fix  the  actual  damage. 

§  1672.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  242.    In  effect  July  1,  1874.] 

§  1673.  EveiT  contract  by  which  any  one  is 
restrained  from  exercising  a  lawful  profession, 
trade,  or  business  of  any  kind,  otherwise  than  is 
provided  by  the  next  two  sections,  is  to  that  ex- 
tent void. 

§  1674.  One  who  sells  the  good  will  of  a  busi- 
ness may  agree  with  the  buyer  to  refrain  from 
carrying  on  a  similar  business  within  a  specified 
county,  city,  or  a  part  thereof,  so  long  as  the 
buyer,  or  any  person  deriving  title  to  the  good  will 
from  him,  carries  on  a  like  business  therein. 

Good  will  of  a  business  defined:  Sec.  992,  ante. 

Good  will  of  a  business  is  property:  Sec.  993, 
ante. 

Sale  of  good  will,  implied  warranty  not  to  draw 
away  customers:  Sec.  1776,  post. 

Partner  cannot  dispose  of  good  will:  See  post, 
sec.  2430,  subd.  2. 

§  1675.  Partners  may,  upon  or  in  anticipation 
of  a  dissolution  of  the  partnership,  agree  that 
none  of  them  will  carry  on  a  similar  business 
within  the  same  city  or  town  where  the  partner- 
ship business  has  been  transacted,  or  within  a 
specified  part  thereof. 

§  1676.  Every  contract  in  restraint  of  the  mar- 
riage of  any  person,  other  than  a  minor,  is  void. 

Conditions  in  restraint  of  marriage:  See  ante, 
sec.  710. 


§§  1682-1689      EXTTNCTION    OF    CONTRACTS.  390 

TITLE   V. 

EXTINCTION    OF    CONTRACTS. 

Chapter  I.    Contracts.  How  Extinguished,  §  1682. 
II.    Rescission,  §§  1688-1091. 
III.    Alteration  and  Cancellation,  §§  1697- 
1701. 

CHAPTER  I. 

CONTRACTS,    HOW   EXTINGUISHED. 
§  1682.     Contract,   how   extinguished. 

§  1682.  A  contract  may  be  extinguished  in  like 
manner  with  any  other  obligation,  and  also  in  the 
manner  prescribed  by  this  title. 

CHAPTER  II. 

RESCISSION. 

§  1688.     Rescission  extinguishes  contract. 

§  1689.    When  party  may  rescind. 

§  1690.    When   stipulations  against   right  to   rescind   do   not 

defeat   it. 
§  1691.     Rescission,  how  effected. 

§  1688.  A  contract  is  extinguished  by  its 
rescission. 

§  1689.  A  party  to  a  contract  may  rescind  the 
same  in  the  following  cases  only: 

1.  If  the  consent  of  the  party  rescinding,  or  of 
any  party  jointly  contracting  with  him,  was  given 
by  mistake,  or  obtained  through  duress,  menace, 
fraud,  or  undue  influence,  exercised  by  or  with 
the   connivance   of    the   party   as    to   whom    he 


391  EXTINCTION    OF    CONTRACTS.      §§  1690.  1691 

rescinds,  or  of  any  other  party  to  the  contract 
jointly  interested  with  such  party; 

2.  If,  through  the  fault  of  the  party  as  to  whom 
he  rescinds  the  consideration  for  his  obligation 
fails,  in  whole  or  in  part; 

3.  If  such  consideration  becomes  entirely  void 
from  any  cause; 

4.  If  such  consideration,  before  it  is  rendered 
to   him,   fails   in   a   material   respect,   from   any 

cause;  or, 

5.  By  consent  of  all  the  other  parties. 
See  post,  sees.  3406  et  seq.,  on  rescission. 
Grounds    of    rescission  as    a    counterclaim:  See 

Code  Civ.  Proc,  sees.  438,  439. 

Rescinding  sale  of  personalty  for  nonpayment  of 
price:  See  post,  sec.  1748. 

§  1690.  A  stipulation  that  errors  of  description 
shall  not  avoid  a  contract,  or  shall  be  the  subject 
of  compensation,  or  both,  does  not  talie  away  the 
right  of  rescission  for  fraud,  nor  for  mistake, 
where  such  mistal^e  is  in  a  matter  essential  to  the 
inducement  of  the  contract,  and  is  not  capable  of 
exact  and  entire  compensation. 

§  1691.  Rescission,  when  not  effected  by  con- 
sent, can  be  accomplished  only  by  the  use,  on  the 
part  of  the  party  rescinding,  of  reasonable  dili- 
gence to  comply  with  the  following  rules: 

1.  He  must  rescind  promptly,  upon  discovering 
the  facts  which  entitle  him  to  rescind,  if  he  is  free 
from  duress,  menace,  undue  influence,  or  disabil- 
ity, and  is  aware  of  his  right  to  rescind;  and, 

2.  He  must  restore  to  the  other  party  every- 
thing of  value  which  he  has  received  from  him 
under  the  contract;  or  must  offer  to  restore  the 
same,  upon  condition  that  such  party  shall  do  like- 
wise, unless  the  latter  is  unable  or  positively  re- 
fuses to  do  so. 

See  sees.  3406-3408,  post. 


§§  1697-1700      EXTINCTION    OF    CONTRACTS.  392 

CHAPTER  III. 

ALTERATION  AND  CANCELLATION. 

§  1697.  Alteration  of  verbal  contract. 

§  1398.  Sealed  contracts,   how  modified. 

§  1699.  Extinction  by  cancellation,   etc. 

§  1700.  E.xtinction   by  unauthorized   alteration. 

§  1701.  Alteration  of  duplicate,  not  to  prejudice. 

§  1697.  A  contract  not  in  writing  may  be  alter- 
ed in  any  respect  by  consent  of  the  parties,  in 
writing,  without  a  new  consideration,  and  is  extin- 
guished thereby  to  the  extent  of  the  new  altera- 
tion. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  242.  In  effect  July  1, 
1874.] 

Alterations  in  written  instrument  to  be  ac- 
counted for  by  the  party  producing  it  in  evidence: 
Code  Civ.  Proc.  sec.  1982. 

§  1698.  A  contract  in  writing  may  be  altered 
by  a  contract  in  writing,  or  by  an  executed  oral 
agreement,  and  not  otherwise.  [Amendment  ap- 
proved March  30,  1874;  Amendments  1873-4,  p. 
242.    In  effect  July  1,  1874.] 

Parol  evidence  to  alter  writings:  See  Code  Civ. 
Proc,  sec.  1856;  and  see  ante,  sec.  1G39. 

§  1699.  The  destruction  or  cancellation  of  a 
written  contract,  or  of  the  signature  of  the  par- 
ties liable  thereon,  with  intent  to  extinguish  the 
obligation  thereof,  extinguishes  it  as  to  all  the 
parties  consenting  to  the  act. 

§  1700.  The  intentional  destruction,  cancella- 
tion, or  material  alteration  of  a  written  contract, 
by  a  party  entitled  to  any  benefit  under  it,  or 
with  his  consent,  extinguishes  all  the  executory 
obligations  of  the  contract  in  his  favor,  against 
parties  who  do  not  consent  to  the  act. 


393  EXTINCTION    OF    CONTRACTS.     _         §  1701 

§  1701.  Where  a  contract  is  executed  in  dupli- 
cate, an  alteration  or  destruction  of  one  copy, 
while  the  other  exists,  is  not  within  the  provi- 
sions of  the  last  section. 


PAKT   III. 


OBLIGATIONS  IMPOSED  BY  LAW. 

§  1708.  Abstinence  from  injury. 

§  1709.  Fraudulent   deceit. 

§  1710.  Deceit,   what. 

§  1711.  Deceit  upon  the  public,  etc. 

§  1712.  Restoration  of  thing  wrongfully  acquired, 

§  1713.  When  demand  necessary. 

§  1714.  Responsibility  for  willful  acts,  negligence,  etc. 

§  1715.  Other  obligations. 

§  1708.  Every  person  is  bound,  without  con- 
tract, to  abstain  from  injuring  the  person  or  prop- 
erty of  another,  or  infringing  upon  any  of  his 
rights. 

As  to  what  injuries  are  criminal:  See  Penal 
Code,  sees.  346-349. 

§  1709.  One  who  willfully  deceives  another 
with  intent  to  induce  him  to  alter  his  position  to 
his  injury  or  risk,  is  liable  for  any  damage  which 
he  thereby  suffers. 

§  1710.  A  deceit,  within  the  meaning  of  the 
last  section,  is  either: 

1.  The  suggestion,  as  a  fact,  of  that  which  is 
not  true,  by  one  who  does  not  believe  it  to  be 
true; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not 
true,  by  one  who  has  no  reasonable  ground  for 
believing  it  to  be  true; 

3.    The  suppression  of  a  fact,  by  one  who  is 
bound  to  disclose  it,  or  who  gives  information  of 


395  OBLIGATIONS    IMPOSED    BY    LAW.    §§  1711-1715 

Other  facts  which  are  likely  to  mislead  for  want 
of  communication  of  that  fact;  or, 

4.  A  promise,  made  without  any  intention  of 
performing  it. 

Fraud  actual  and  constructive:  See  sees.  1571 
et  seq. 

§  1711.  One  who  practices  a  deceit  with  intent 
to  defraud  the  public,  or  a  particular  class  of  per- 
sons, is  deemed  to  have  intended  to  defraud  every 
individual  in  that  class,  who  is  actually  misled 
by  the  deceit. 

S  1712.  One  who  obtains  a  thing  without  the 
consent  of  its  owner,  or  by  a  consent  afterward 
rescinded,  or  by  an  unlawful  exaction  which  the 
owner  could  not  at  the  time  prudently  refuse, 
must  restore  it  to  the  person  from  whom  it  was 
thus  obtained,  unless  he  has  acquired  a  title 
thereto  superior  to  that  of  such  other  person,  or 
unless  the  transaction  was  corrupt  and  unlawful 
on  both  sides. 

§  1713.  The  restoration  required  by  the  last 
section  must  be  made  without  demand,  except 
where  a  thing  is  obtained  by  mutual  mistake,  in 
which  case  the  party  obtaining  the  thing  is  not 
bound  to  return  it  until  he  has  notice  of  the  mis- 
take. 

§  1714.  Every  one  is  responsible,  not  only  for 
the  result  of  his  willful  acts,  but  also  for  an  injury 
occasioned  to  another  by  his  want  of  ordinary  care 
or  skill  in  the  management  of  his  property  or  per- 
son, except  so  far  as  the  latter  has,  willfully  or 
by  want  of  ordinary  care,  brought  the  injury  upon 
himself.  The  extent  of  liability  in  such  cases  is 
defined  by  the  Title  on  Compensatory  Relief. 

Compensatory  relief:  See  post,  sees.  3281  et  seq. 

§  1715.  Other  obligations  are  prescribed  by 
Divisions  I  and  II  of  this  Code. 


PART  IV. 


OBLIGAriONS  ARISING  FROM  PARTICULAR 
TRANSACTIONS. 


Title  I. 

II. 

III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 


Sale,  §§  1721-1798. 

Exchange,  §§  1804-1807. 

Deposit,  §§  1813-1878. 

Loan,  §§  1884-1920. 

Hiring,  §§  1925-1959. 

Service,  §§  19G5-2079. 

Carriage,  §§  2085-2209. 

Trust,  §§  2215-2289. 

Agency,  §§  2295-2389. 

Partnership,  §§  2395-2520. 

Insurance,  §§  2527-2766. 

Indemnity,  §§  2772-2781. 

Guaranty,  §§  2787-2866. 

Lien,  §§  2872-3080. 

Negotiable  Instruments,  §§  3086-3262. 

General  Provisions,  §  3268. 


Chapter  I. 
II. 

III. 

IV. 


TITLE  L 

SALE. 

General  Provisions,  §§  1721-1741. 
Rights  and  Obligations  of   the  Seller, 

§§  1748-1778. 
Rights  and  Obligations  of  the  Buyer, 

§§  1784-1786. 
Sale  by  Auction,  §§  1792-1798. 


397  SALE.  §§  1721-1726 


CHAPTER  I. 

GENERAL    PROVISIONS. 

Article  I.    Sale,  §§  1721-1722. 

II.    Agreements   for  Sale,    §§   1726-1734. 
III.     Form  of  the  Contract,   §§  1739-1741. 


ARTICLE  I. 

SALE. 
§  1721.     Sale,  what. 
§  1722.     Subject   of   sale. 

§  1721.  Sale  is  a  contract  by  which,  for  a  pe- 
cuniary consideration,  called  a  price,  one  transfers 
to  another  an  interest  in  property. 

§  1722.  The  subject  of  sale  must  be  property, 
the  title  to  which  can  be  immediately  transferred 
from  the  seller  to  the  buyer. 


ARTICLE  II. 

AGREEMENTS  FOR  SALE. 

§  1726.    Agreement   for   sale. 

§  1727.    Agreement  to  sell. 

§  1728.    Agreement  to  buy. 

§  1729.    Agreement  to  sell  and  buy. 

§  1730.    What  may  be  the  subject  of  the  contract. 

§  1731.    Agreement  to  sell  real  property. 

§  1732,  Form  of  grant  required  by  such  contract.  (Re- 
pealed.) 

§  1733.  Usual  common  law  covenants  required  by  such  con- 
tracts, when. 

§  1734.     Form  of  such  covenants. 

§  1726.    An  agreement  for  sale  is  either: 
1.    An  agreement  to  sell; 

Civ.    Code.— 34. 


§§  1727-1734  SALE.  398 

2.  All  agreement  to  buy;  or, 

3.  A  mutual  agreement  to  sell  and  buy. 

§  1727.  An  agreement  to  sell  is  a  contract  by 
which  one  engages,  for  a  price,  to  transfer  to  an- 
other the  title  to  a  certain  thing. 

§  1728.  An  agreement  to  buy  is  a  contract  by 
which  one  engages  to  accept  from  another,  and 
pay  a  price  for  the  title  to  a  certain  thing. 

§  1729.  An  agreement  to  sell  and  buy  is  a  con- 
tract by  which  one  engages  to  transfer  the  title 
to  a  certain  thing  to  another,  who  engages  to  ac- 
cept the  same  from  him  and  to  pay  a  price  there- 
for. 

§  1730.  Any  property  which,  if  in  existence, 
might  be  the  subject  of  sale,  may  be  the  subject 
of  an  agreement  for  sale,  whether  in  existence  or 
not. 

§  1731.  An  agreement  to  sell  real  property  binds 
the  seller  to  execute  a  conveyance  in  form  suffi- 
cient to  pass  the  title  to  the  property.  [Amend- 
ment approved  March  30,  1874;  Amendments  1873- 
4,  p.  243.    In  effect  July  1,  1874.] 

§  1732.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  243.    In  effect  July  1,  1874.] 

§  1733.  An  agreement  on  the  part  of  a  seller 
of  real  property  to  give  the  usual  covenants,  binds 
him  to  insert  in  the  grant  covenants  of  "seisin," 
•'quiet  enjoyment."  "further  assurance,"  "gen- 
oral  warranty."  and  "against  incumbrances." 

§  1734.  The  covenants  mentioned  in  the  last 
section  must  be  in  substance  as  follows:  "The 
party  of  the  first  part  covenants  with  the  party 
of  the  second  part,  that  the  former  is  now  seized 


j.,;.  SALE.  §§  1739-1740 

iu  fee  simple  of  the  property  granted;  that  the 
latter  shall  enjoy  the  same  without  any  lawful 
disturbance;  that  the  same  is  free  from  all  in- 
cumbrances; that  the  party  of  the  first  part,  and 
all  persons  acquiring  any  interest  in  the  same 
through  or  for  him,  will,  on  demand,  execute  and 
deliver  to  the  party  of  the  second  part,  at  the  ex- 
pense of  the  latter,  any  further  assurance  of  the 
same  that  may  be  reasonably  required;  and  that 
the  party  of  the  first  part  will  warrant  to  the 
party  of  the  second  part  all  the  said  property 
against  every  person  lawfully  claiming  the  same." 


AKTICLE  III. 

FORM  OF  THE   CONTRACT. 

§  1739.     Contract  for  sale  of  personal  property. 

§  1740.     Contract  to  manufacture. 

§  1741.     Contract  for  sale  of  real  property. 

§  1739.  Xo  sale  of  personal  property,  or  agree- 
ment to  buy  or  sell  it  for  a  price  of  two  hundred 
dollars  or  more,  is  valid,  unless: 

1.  The  agreement  or  some  note  or  memoran- 
dum thereof  be  in  writing,  and  subscribed  by  the 
party  to  be  charged,  or  by  his  agent;  or, 

2.  The  buyer  accepts  and  receives  part  of  the 
thing  sold,  or  when  it  consists  of  a  thing  in  ac- 
tion, part  of  the  evidences  thereof,  or  some  of 
them;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  part 
of  the  price.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  p.  243.  In  effect  July 
1.  1874.] 

Code  Civ.  Proc,  sees.  1971-1974. 

§  1740.  An  agreement  to  manufacture  a  thing, 
from  materials  furnished  by  the  manufacturer,  or 


§§  1741-1749  SALE.  400 

by  another  person,  is  not  within  the  provisions  of 
the  last  section. 

§  1741.  No  agreement  for  the  sale  of  real  prop- 
erty, or  of  an  interest  therein,  is  valid,  unless  the 
same,  or  some  note  or  memorandum  thereof,  be  in 
writing,  and  subscribed  by  the  party  to  be  charg- 
ed, or  his  agent,  thereunto  authorized,  in  writing; 
but  this  does  not  abridge  the  power  of  any  court 
to  compel  the  specific  performance  of  any  agree- 
ment for  the  sale  of  real  property  in  case  of  part 
performance  thereof,  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  243.  In  ef- 
fect July  1,  1874.] 

Code  Civ.  Proc,  sees.  1971-1974. 


CHAPTER  II. 

RIGHTS  AND  OBLIGATIONS  OP  THE  SELLER. 

Article  I.     Rights  and  Duties  before  Delivery,  §§  1748,  1749. 
II.     Delivery,  §^  liu3-17oS. 
III.     Warranty,   §§  1763-1778. 

ARTICLE  I. 

RIGHTS  AND  DUTIES  BEFORE  DELIVERY. 

§  1748.    When  seller  must  act  as  depositary. 
§  1749.    When  seller  may  resell. 

§  1748.  After  personal  property  has  been  sold, 
and  until  the  delivery  is  completed,  the  seller  has 
the  riglits  and  obligations  of  a  depositary  for  hire, 
except  that  he  must  l^eep  the  property,  without 
charge,  until  the  buyer  has  had  a  reasonable  op- 
portunity to  remove  it. 

§  1749.  If  a  buyer  of  personal  property  does 
not  pay  for  it  according  to  contract,  and  it  remains 


4ul  SALE.  §§  1753-1750 

in  the  possession  of  the  seller  after  payment  is 
due,  the  seller  may  rescind  the  sale  or  may  en- 
force his  lien  for  the  price,  in  the  manner  prescrib- 
ed by  the  Title  on  Liens. 

Rescission  of  contracts,  generally:  See  ante,  sec. 
16SS  et  sea- 

Rescission  of  contract  for  sale  by  buyer:  See 
post,  sees.  1785,  178(3. 

Liens:  See  post  sees.  2872  et  seq. 


ARTICLE  11. 

DELIVERY. 

§  1753.  Delivery  on  deraaud. 

§  1754.  Delivery,   where  made. 

§  1755.  Expense    of    transportation. 

§  1756.  Notice  of  election  as  to  delivery. 

§  1757.  Buyer's   directions   as   to   manner   of   sending   thing 

sold. 

§  1758.  Delivery  to  be  within  reasonable  hours. 

§  1753,  One  who  sells  personal  property, 
whether  it  was  in  his  possession  at  the  time  of 
sale  or  not,  must  put  it  into  a  condition  fit  for 
delivery,  and  deliver  it  to  the  buyer  within  a  rea- 
sonable time  after  demand,  unless  he  has  a  lien 
thereon. 

Performance  generally:  See  ante,  sees.  1473, 
1485,  et  seq. 

Delivery  sufficient  as  to  third  persons:  See  sec. 
3440,  post. 

§  1754.  Personal  property  sold  is  deliverable 
at  the  place  where  it  is  at  the  time  of  the  sale  or 
agreement  to  sell,  or  if  it  is  not  then  in  existence, 
it  is  deliverable  at  the  place  where  it  is  produced. 

§  1755.  One  who  sells  personal  property  must 
bring  it  to  his  own  door,  or  other  convenient  place, 
for  its  acceptance  by  the  buyer,  but  further  trans- 
portation is  at  the  risk  and  expense  of  the  buyer. 


§§  1753-1763  SALE.  402 

§  1756.  When  either  party  to  a  contract  of  sale 
has  an  option  as  to  the  time,  place,  or  manner  of 
delivery,  he  must  give  the  other  party  reasonable 
notice  of  his  choice;  and  if  he  does  not  give  such 
notice  within  a  reasonable  time,  his  right  of  op- 
tion is  waived. 

§  1757.  If  a  seller  agrees  to  send  the  thing  sold 
to  the  buyer,  he  must  follow  the  directions  of  the 
latter  as  to  the  manner  of  sending,  or  it  will  be  at 
his  own  risk  during  its  transportation.  If  he  fol- 
lows such  directions,  or  if,  in  the  absence  of  spe- 
cial directions,  he  uses  ordinary  care  in  forward- 
ing the  thing,  it  is  at  the  risk  of  the  buyer. 

§  1758.  The  delivery  of  a  thing  sold  can  be 
offered  or  demanded  only  within  reasonable  hours 
of  the  day. 

ARTICLE  III. 

WARRANTY. 

§  1763.  Warranty,  what. 

§  1764.  No   implied   warranty   in  mere   contract  of  sale. 

§  1765.  Warranty   of    title    to    personal    property. 

§  1766.  Warranty  on  sale  by  sample. 

§  1767.  When  seller  knows  that  buyer  relies  on  his  state- 
ments, etc. 

§  1768.  Merchandise  not  in  existence. 

§  1769.  Manufacturer's  warranty  against  latent  defects. 

§  1770.  Thing  bought  for  particular  purpose. 

§  1771.  W^hen  thing  cannot  be  examined  by  buyer. 

S  1772.  Trade-marks. 

§  1773.  Other  marks. 

§  1774.  Warranty  on  sale  of  written  instrument. 

§  1775.  Warranty  of  provisions  for  domestic  use. 

§  1776.  Warranty  on  sale  of  good-will. 

§  1777.  Warranty  upon  judicial  sale. 

§  1778.  Effect  of  general  warranty. 

§  1763.  A  warranty  is  an  engagement  by  which 
a  seller  assures  to  a  buyer  the  existence  of  some 
fact  affecting  the  transaction,  whether  past,  pres- 
ent, or  future. 


403  SALE.  §§  1764-1770 

§  1764.  Except  as  prescribed  by  this  article,  a 
raere  contract  of  sale  or  agreement  to  sell  does  not 
imply  a  warranty. 

Warranty  of  genuineness  on  exchange  of  money: 
Sec.  1807,  post. 

§  1765.  One  who  sells  or  agrees  to  sell  per- 
sonal property  as  his  own,  thereby  warrants  that 
he  has  a  good  and  unincumbered  title  thereto. 

§  1766.  One  who  sells  or  agrees  to  sell  goods 
by  sample,  thereby  warrants  the  bulk  to  be  equal 
to  the  sample. 

§  1767.  One  who  sells  or  agrees  to  sell  per- 
sonal property,  knowing  that  the  buyer  relies  up- 
on his  advice  or  judgment  thereby  warrants  to  the 
buyer  that  neither  the  seller,  nor  any  agent  em- 
ployed by  him  in  the  transaction,  knows  the  exist- 
ence of  any  fact  concerning  the  thing  sold  which 
would  to  his  knowledge  destroy  the  buyer's  in- 
ducement to  buy. 

§  1768.  One  who  agrees  to  sell  merchandise 
not  then  in  existence,  thereby  warrants  that  it 
shall  be  sound  and  merchantable  at  the  place  of 
production  contemplated  by  the  parties,  and  as 
nearly  so,  at  the  place  of  delivery,  as  can  be  se- 
cured by  reasonable  care. 

§  1769.  One  who  sells  or  agrees  to  sell  an  arti- 
cle of  his  own  manufacture,  thereby  warrants  it 
to  be  free  from  any  latent  defect,  not  disclosed  to 
the  buyer,  arising  from  the  process  of  manufac- 
ture, and  also  that  neither  he  nor  his  agent  in  such 
manufacture  has  knowingly  used  improper  mate- 
rials therein. 

§  1770.  One  who  manufactures  an  article  un- 
der an  order  for  a  particular  purpose,  warrants  by 
the  sale  that  it  is  reasonably  fit  for  that  purpose. 


§§  1771-1777  SALE.  404 

§  1771.  One  who  sells  or  agrees  to  sell  mer- 
chandise inaccessible  to  the  examination  of  the 
buyer,  thereby  warrants  that  it  is  sound  and  mer- 
chantable. 

§  1772.  One  who  sells  or  agrees  to  sell  any  arti- 
cle to  which  there  is  affixed  or  attached  a  trade- 
mark, thereby  warrants  that  mark  to  be  genuine 
and  lawfully  used. 

Selling  goods  with  counterfeit  trademark:  See 
Penal  Code,  sec.  351. 

§  1773.  One  who  sells  or  agrees  to  sell  any  ar- 
ticle to  which  there  is  affixed  or  attached  a  state- 
ment or  mark  to  express  the  quantity  or  quality 
thereof,  or  the  place  where  it  was,  in  whole  or  in 
part,  produced,  manufactured,  or  prepared,  there- 
by warrants  the  truth  thereof. 

Owner  of  trademark:  Polit.  Code,  sec.  3199. 

§  1774.  One  who  sells  or  agrees  to  sell  an  in- 
strument purporting  to  bind  any  one  to  the  per- 
formance of  an  act,  thereby  warrants  that  he  has 
no  knowledge  of  any  facts  which  tend  to  prove 
it  wortliless,  such  as  the  insolvency  of  any  of  the 
parties  thereto,  where  that  is  material,  the  ex- 
tinction of  its  obligations,  or  its  invalidity  for  any 
cause.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4.  p.  244.  In  effect  July  1, 
1874.] 

§  1775.  One  who  makes  a  business  of  selling 
provisions  for  domestic  use  warrants  by  a  sale 
thereof,  to  one  who  buys  for  actual  consumption, 
that  they  are  sound  and  wholesome. 

§  1776.  One  who  sells  the  good  will  of  a  bus- 
iness, thereby  warrants  that  he  will  not  endeavor 
to  draw  off  any  of  the  customers. 

§  1777.    Upon  a  judicial  sale,  the  only  warran- 


405  SALE.  §§  1778-1786 

ty  implied  is  that  the  seller  does  not  know  that 
the  sale  will  not  pass  a  good  title  to  the  prop- 
erty. 

§  1778.  A  general  warranty  does  not  extend  to 
defects  inconsistent  therewith  of  which  the  buyer 
was  then  aware,  or  which  were  then  easily  dis- 
cernible by  him  without  the  exercise  of  peculiar 
skill;  but  it  extends  to  all  other  defects. 


CHAPTER  III. 

RIGHTS   AND   OBLIGATIONS   OF   THE   BUYER. 

§  1784.  Price,  when  to  be  paid. 
§  1785.  Right  to  inspect  goods. 
§  1786.     Rights   in   case   of  breach   of   -warranty. 

§  1784.  A  buyer  must  pay  the  price  of  the 
thing  sold  on  its  delivery,  and  must  take  it  away 
within  a  reasonable  time  after  the  seller  offers  to 
deliver  it. 

When  seller  must  act  as  bailee:  See  ante,  sec. 
1748. 

§  1785.  On  an  agreement  for  sale,  with  war- 
ranty, the  buyer  has  a  right  to  inspect  the  thing 
sold,  at  a  reasonable  time,  before  accepting  it; 
and  may  rescind  the  contract  if  the  seller  refuses 
to  permit  him  to  do  so. 

Rescission  of  contract  by  seller:  See  ante,  sec. 
1749. 

Rescission  by  buyer  for  breach  of  warranty:  See 
next  section. 

§  1786.  The  breach  of  a  warranty  entitles  the 
buyer  to  rescind  an  agreement  for  sale,  but  not 
an  executed  sale,  unless  the  warranty  was  intend- 
ed by  the  parties  to  operate  as  a  condition. 


§§  1792-1796  SALE.  406 

CHAPTER  IV. 

SALE  BY  AUCTION. 

§  1792.  Sale  by   auction,   what. 

§  1793,  Sale,  when  complete. 

§  1794.  Withdrawal  of  bid. 

§  1795.  Sale  under  written  conditions. 

§  1796.  Rights  of  buyer  upon  sale  without  reserve. 

§  1797.  By  bidding. 

§  1798.  Auctioneer's  memorandum  of  sale. 

§  1792.  A  sale  by  auction  is  a  sale  by  public- 
outcry  to  the  highest  bidder  on  the  spot. 

Auctioneers,  authority  of,  generally:  See  sees. 
2362,  2303.  See  regulations  in  Polit.  Code,  sec. 
3284  et  seq.,  respecting  auctioneers'  bonds,  license, 
etc. 

§  1793.  A  sale  by  auction  is  complete  when  the 
auctioneer  publicly  announces,  by  the  fall  of  his 
hammer,  or  in  any  other  customary  manner,  that 
the  thing  is  sold. 

§  1794.  Until  the  announcement  mentioned  in 
the  Inst  section  has  been  made,  any  bidder  may 
withdraw  his  bid,  if  he  does  so  in  a  manner  rea- 
sonably sufficient  to  bring  it  to  the  notice  of  the 
auctioneer. 

§  1795.  When  a  sale  by  auction  is  made  upon 
written  or  printed  conditions,  such  conditions  can- 
not be  modified  by  any  oral  declaration  of  the 
auctioneer,  except  so  far  as  thej  are  for  his  own 
benefit. 

S  1796.  If.  at  a  sale  by  auction,  the  auctioneer, 
liaving  authority  to  do  so,  publicly  announces  that 
the  sale  will  be  Avithout  reserve,  or  makes  any 
nnnouncement  equivalent  thereto,  the  highest 
bidder  in  good  faith  has  an  absolute  right  to  the 


407  EXCHANGE.  §§  1797-1805 

completion  of  the  sale  to  him;  and,  upon  such  a 
sale,  bids  by  the  seller,  or  any  agent  for  him,  are 
void. 

§  1797*  The  employment  by  a  seller  of  any  per- 
son to  bid  at  a  sale  by  auction,  without  the  knowl- 
edge of  the  buyer,  without  an  intention  on  the 
part  of  such  bidder  to  buy,  and  on  the  part  of 
the  seller  to  enforce  his  bid,  is  a  fraud  upon  the 
buyer  which  entitles  him  to  rescind  his  pur- 
chase. 

§  1798.  When  property  is  sold  by  auction,  an 
entry  made  by  the  auctioneer,  in  his  sale-booli,  at 
the  time  of  the  sale,  specifying  the  name  of  the 
person  for  whom  he  sells,  the  thing  sold,  the 
price,  the  terms  of  sale,  and  the  name  of  the  buy- 
er, binds  both  the  parties  in  the  same  manner  as 
if  made  by  themselves.  [Amendment  approved 
March  30.  1874;  Amendments  1873-4,  p.  244.  In 
effect  July  1,  1874.] 

Auctioneer  agent  to  make  memorandum:  See 
ante,  sec.  1624. 

TITLE  II. 

EXCHANGE. 

§  1804.     Exchange,  what. 

§  1805.     Form  of  contract. 

§  1806.    Parties  have   rights   and  obligations   of  sellers   and 

buyers. 
§  1807.    Warranty  of  money. 

§  1804.  Exchange  is  a  contract  by  which  the 
parties  mutually  give,  or  agree  to  give,  one  thing 
for  another,  neither  thing,  or  both  things,  being 
money  only. 

§  1805.  The  provisions  of  section  1739  apply  to 
all  exchanges  in  which  the  value  of  the  thing  to 
be  given  by  either  party  is  two  hundred  dollars 
or  more. 


§§  1806-1813  DEPOSIT.  408 

§  1806.  The  provisions  of  the  Title  on  Sale  ap- 
ply to  exchanges.  Each  party  has  the  rights  and 
obligations  of  a  seller  as  to  the  thing  which  he 
gives,  and  of  a  buyer  as  to  that  v^-hich  he  takes. 

§  1807.  On  an  exchange  of  money,  each  party 
thereby  warrants  the  genuineness  of  the  money 
given  by  him. 


TITLE  III. 

DEPOSIT. 

Chapter  I.    Deposit  in  General,  §§  1813-1827. 
II.    Deposit  for  Keeping,  §§  1833-1872. 
III.    Deposit  for  Exchange,  §  1878. 


CHAl'TKU  1. 

DEPOSIT  IN  GENERAL. 

Article  I.     Nature  and  creation  of  deposit,  §§  1813-1818. 
II.     Obligations  of  the  Depositary,  §§  1822-1827. 


ARTICLE  T. 

NATURE  AND  CREATION  OF  DEPOSIT. 

§  1813.  Deposit,  kinds  of. 

§  1814.  Voluntary  deposit,  how  made. 

§  1815.  Involuntary  deposit,  how  made. 

§  1816.  Same. 

§  1817.  Deposit  for  keeping,  what. 

§  1818.  Deposit  for  exchange,  what. 

§  1813.  A  deposit  may  be  voluntary  or  invol- 
untary; and  for  safe  keeping  or  for  exchange. 

Deposit  for  keeping:  Sees.  1833,  post,  et  seq. 

Gratuitous  deposit,  and  incidents:  Sees.  1844. 
post,  et  seq. 

Deposit  for  hire:  Sees.  1851,  post,  et  seq. 


409  DEPOSIT.  §§  1814-1817 

Deposit  for  exchange:  Sec.  1858,  post. 
Loan  for    use:    Sees.  1884  et  seq.;    loan  for    ex- 
change: Sec.  1902;  loan  of  money:  Sec.  1912. 
Hiring:  See  sees.  1925,  post,  et  seq. 
Innkeepers:  Sees.  1859,  post,  et  seq. 
Common  carriers:  Sees.  2085  et  seq. 
Pledge:  Sees.  2986,  post,  et  seq. 

§  1814.  A  voluntary  deposit  is  made  by  one 
giving  to  another,  with  his  consent,  the  possession 
of  personal  property  to  keep  for  the  benefit  of  the 
former,  or  of  a  third  party.  The  person  giving  is 
called  the  depositor,  and  the  person  receiving  the 
depositary. 

Finder  of  lost  article:  See  sees.  1864,  post,  et 
seq. 

Obligations  of  the  depositary:  See  sees.  1822  et 
seq. 

§  1815.    An  involuntary  deposit  is  made: 

1.  By  the  accidental  leaving  or  placing  of  per- 
sonal property  in  the  possession  of  any  person, 
without  negligence  on  the  part  of  its  owner;  or, 

2.  In  cases  of  fire,  shipwreck,  inundation,  insur- 
rection, riot,  or  like  extraordinary  emergencies, 
by  the  owner  of  personal  property  committing  it, 
out  of  necessity,  to  the  care  of  any  person. 

Involuntary  deposit  in  cases  of  emergency  must 
be  accepted:  See  next  section. 

Involuntary  deposit  is  gratuitous:  See  sec.  1845, 
post. 

Degree  of  care  requisite:  See  post,  sec.  1846. 

Duties  of  depositary,  when  cease:  See  post,  sec. 
1847. 

§  1816.  The  person  with  whom  a  thing  is  de- 
posited in  the  manner  described  in  the  last  sec- 
tion is  bound  to  take  charge  of  it,  if  able  to  do  so. 

§  1817.    A  deposit  for  keeping  is  one  in  which 

Civ.    Code.— 35. 


§§  1818-1823  DEPOSIT.  410 

the   depositary   is   bound  to  return   the   identical' 
thing  deposited. 
Deposit  for  l^eeping:  See  post,  sees.  1833  et  seq. 

§  1818.  A  deposit  for  exchange  is  one  in  which 
the  depositary  is  only  bound  to  return  a  thing 
corresponding  in  kind  to  that  which  is  deposited. 

Deposit  for  exchange  transfers  title:  Sec.  1878, 
post. 

Loan  for  exchange:  See  post,  sees.  1902  et  seq. 


ARTICLE  XL 

OBLIGATIONS  OF  THE  DEPOSITARY. 

§  1822.  Depositary  must  deliver  on  demand. 

§  1823.  No  obligation  to  deliver  without  demand. 

§  1824.  Place  of  delivery. 

§  1825.  Notice  to  owner  of  adverse  claim. 

§  1826.  Notice  to  owner  of  thing  wrongfully  detained. 

§  1827.  Delivery  of  thing  owned  jointly,  &c. 

§  1822.  A  depositary  must  deliver  the  thing  to 
the  person  for  whose  benefit  it  was  deposited,  on 
demand,  whether  the  deposit  was  made  for  a 
specified  time  or  not,  unless  he  has  a  lien  upon  the 
thing  deposited,  or  has  been  forbidden  or  prevented 
from  doing  so  by  the  real  owner  thereof,  or  by 
the  act  of  the  law,  and  has  given  the  notice  re- 
quired by  section  1825. 

See  sees.  1823, 1826. 

Care  required  of  depositary:  See  sec.  1852,  post. 

Depositary's  lien:  Consult  section  3051  for  a 
general  lien  upon  personalty  dependent  on  pos- 
session, arising  from  service  done  to  owner  in  re- 
spect thereto. 

Notice  of  adverse  proceedings:  Sec.  1825. 

Lien  of  innlveepers:  See  sees.  1861  et  seq. 

§  1823.    A  depositary  is  not  bound  to  deliver  a 


411  DEPOSIT.  §§  1824-1827 

thing  deposited  without  demand,  even  where  the 
deposit  is  made  for  a  specified  time. 

§  1824.  A  depositary  must  deliver  the  thing  de- 
posited at  his  residence  or  place  of  business,  as 
may  be  most  convenient  for  him. 

Delivery  in  sales:  See  sees.  1753  et  seq. 

§  1825.  A  depositary  must  give  prompt  notice 
to  the  person  for  whose  benefit  the  deposit  was 
made,  of  any  proceedings  tali.en  adversely  to  his 
interest  in  the  thing  deposited,  which  may  tend 
to  excuse  the  depositary  from  delivering  the 
thing  to  him. 

Sec.  1822,  supra. 

§  1826.  A  depositary,  who  believes  that  a  thing 
deposited  with  him  is  wrongfully  detained  from  its 
true  owner,  may  give  him  notice  of  the  deposit; 
and  if  within  a  reasonable  time  afterward  he  does 
not  claim  it,  and  sufiiciently  establish  his  right 
thereto,  and  indemnify  the  depositary  against  the 
claim  of  the  depositor,  the  depositary  is  exoner- 
ated from  liability  to  the  person  to  whom  he  gave 
the  notice,  upon  returning  the  thing  to  the  depos- 
itor, or  assuming,  in  good  faith,  a  new  obligation 
changing  his  position  in  respect  to  the  thing,  to 
his  prejudice. 

§  1827.  If  a  thing  deposited  is  owned  jointly 
or  in  common  by  persons  who  cannot  agree  upon 
the  manner  of  its  delivery,  the  depositary  may 
deliver  to  each  his  proper  share  thereof,  if  it  can 
]»e  done  without  injury  to  the  thing. 


|§  1833-1835  DEPOSIT.  412 

CHAPTER  II. 

DEPOSIT  FOR  KEEPING. 

Article  I.  General  Provisions,    §§  1833-1840. 

II.  Gratuitous  Deposit.  §§  1844-1847. 

III.  Storage,    §§  1851-1855. 

IV.  Innkeepers,   §§   1859-1863. 

V.  Finding,    §§   1864-1872. 

ARTICLE  I. 

GENERAL  PROVISIONS. 

§  1833.  Depositor  must  indemnify  depositary. 

§  1834.  Obligation  of  depositary  of  animals. 

§  1835.  Obligations  as  to  use  of  thing  deposited. 

§  1836.  Liability  for  damage  arising  from  wrongful  use. 

§  1837.  Sale  of  thing  in  danger  of  perishing. 

§  1838.  Injury  to,  or  loss  of  thing  deposited. 

§  1839.  Service  rendered  by  depositary. 

§  1840.  Extent  of  his  liability  for  negligence. 

§  1833.  A  depositor  must  indemnify  the  de- 
positary : 

1.  For  all  damage  caused  to  him  by  the  defects 
or  vices  of  the  thing-  deposited;  and, 

2.  For  all  expenses  necessarily  incurred  by  him 
about  the  thing,  other  than  such  as  are  involved 
in  the  nature  of  the  undertal^ing. 

Lender's  liability  for  defects  of  articles  borrow- 
ed: See  sec.  1894. 

§  1834.  A  depositary  of  living  animals  must 
provide  them  vrith  suitable  food  and  shelter,  and 
treat  them  liindly. 

Lien  of  keepers  of  livestock:  See  post,  sec.  3051. 

§  1835.    A  depositary  may   not  use  the  thing 
deposited,  or  permit  it  to  be  used,  for  any  pur 
pose,  without  the  consent  of  the  depositor.    He 
may  not,  if  it  is  purposely  fastened  by  the  depos- 


413  DEPOSIT.  §§  1836-1840 

itor,  Open  it  without  the  consent  of  the  latter,  ex- 
cept in  case  of  necessity. 

See  next  section. 

Hiring:  See  post,  sees.  1925  et  seq. 

§  1836.  A  depositary  is  liable  for  any  damage 
happening  to  the  thing  deposited,  during  his 
Avrongful  use  thereof,  unless  such  damage  must 
inevitably  have  happened  though  the  property  had 
not  been  thus  used, 

§  1837.  If  a  thing  deposited  is  in  actual  dan- 
ger of  perishing  before  instructions  can  be  ob- 
tained from  the  depositor,  the  depositary  may 
sell  it  for  the  best  price  obtainable,  and  retain 
the  proceeds  as  a  deposit,  giving  immediate  notice 
of  his  proceedings  to  the  depositor. 

§  1838.  If  a  thing  is  lost  or  injured  during  its 
deposit,  and  the  depositary  refuses  to  inform  the 
depositor  of  Jhe  circumstances  under  which  the 
loss  or  injury  occurred,  so  far  as  he  has  informa- 
tion concerning  them,  or  willfully  misrepresents 
the  circumstances  to  him,  the  depositary  is  pre- 
sumed to  have  willfully,  or  by  gross  negligence, 
permitted  the  loss  or  injury  to  occur. 

§  1839.  So  far  as  any  service  is  rendered  by  a 
depositary,  or  required  from  him.  his  duties  and 
liabilities  are  prescribed  by  the  Title  on  Employ- 
ment and  Service. 

See  post,  sees.  1965  et  seq. 

§  1840.  The  liability  of  a  depositary  for  negli- 
gence cannot  exceed  the  amount  which  he  is  in- 
formed by  the  depositor,  or  has  reason  to  suppose, 
the  thing  deposited  to  be  worth.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  p. 
244.    In  effect  July  1.  1874.] 


§§  1844-1847  DEPOSIT.  414 

ARTICLE  II. 

GRATUITOUS  DEPOSIT. 

§  1844.  Gratuitous  deposit,  what. 

§  1845.  Nature  of  involuntary  deposit. 

§  1846.  Degree  of  care  required  of  gratuitous  depositary. 

§  1847.  His  duties  cease,  when. 

§  1844.  Gratuitous  deposit  is  a  deposit  for 
which  the  depositary  receives  uo  consideration  be- 
yond the  mere  possession  of  the  thing  deposited. 

Degree  of  care  necessary:  See  next  section.  If 
this  bailment  correspond  to  the  mandatum  as  gen- 
erally understood,  requiring  on  the  part  of  the 
bailee  some  service  to  be  performed  with  respect 
to  the  deposit,  then  sections  1S39,  supra,  and  sec- 
tions 1975,  1976,  1977,  post,  must  be  read  together 
with  section  1840,  in  determining  the  degree  of 
care  which  this  bailee  must  use. 

§  1845.    An  involuntary   deposit   is   gratuitous, 
the  depositary  being  entitled  to  no  reward. 
Involuntary  deposit  defined:  See  ante,  sec.  1815. 

§  1846.  A  gratuitous  depositary  must  use,  at 
least,  slight  care  for  the  preservation  of  the  thing 
deposited. 

Degree  of  care  requisite:  See  note  to  sees.  1844, 
supra. 

§  1847.  The  duties  of  a  gratuitous  depositary 
cease: 

1.  Upon  his  restoring  the  thing  deposited  to  its 
owner;  or, 

2.  Upon  his  giving  reasonable  notice  to  the 
owner  to  remove  it,  and  the  owner  failing  to  do 
so  within  a  reasonable  time.  But  an  involuntary 
depositary,   under  subdivision  2  of  section   1815, 


415  DEPOSIT.  §§  1851-1854 

cannot  give  such  notice  until  the  emergency  which 
gave  rise  to  the  deposit  is  past. 


ARTICLE  III. 

STORAGE. 

5  1851.  Deposit  for  hire. 

§  1852.  Degree  of  care  required  of  depositary  for  hire. 

S  1853.  Rate  of  compensation  for  fraction  of  a  week,  etc. 

§  1854.  Termination  of  deposit. 

§  1855.  Same. 

§  1856.  Lien  for  storage  claarged. 

§  1857.  Storage   property   to   be   sold. 

§  1851.  A  deposit  not  gratuitous  is  called  stor- 
age, 'i'he  depositarj^  in  such  case  is  called  a  de- 
positary for  hire. 

lieceipts  of  warehousemen  and  wharfingers,  act 
in  relation  to:    See  post,  Appendix,  p.  839. 

Hiring  in  general:  See  post,  sec.  1925. 

§  1852.  A  depositary  for  hire  must  use  at  least 
ordinary  care  for  the  preservation  of  the  thing  de- 
posited. 

Liability  of  innl^eepers:  See  sec.  1859. 

Common  carriers:  Sees.  2100,  2114,  2194. 

Liability  of  warehouseman:  See  post.  sees.  2120, 
2121. 

S  1853.  In  the  absence  of  a  different  agree- 
ment or  usage,  a  depositary  for  hire  is  entitled  to 
one  week's  hire  for  the  sustenance  and  shelter  of 
living  animals  during  any  fraction  of  a  week, 
and  to  half  a  month's  hire  for  the  storage  of  any 
other  property  during  any  fraction  of  a  half 
month. 

§  1854.  In  the  absence  of  an  agreement  as  to 
the  length  of  time  during  which  a  deposit  is  to 
continue,  it  may  be  terminated  by  the  depositor  at 
any  time,  and  by  the  depositary  upon  reasonable 
notice. 


§§  1855-185T  DEPOSIT.  416 

Termination  by  depositor:  Compare  the  preced- 
ing and  the  next  sections.  Section  1853  must  re- 
fer to  a  deposit  where  no  length  of  time  is  speci- 
fied; section  1855,  to  a  case  Avhere  there  is  such 
an  understanding. 

§  1855.  Notwithstanding  an  agreement  re- 
specting the  length  of  time  during  which  a  depos- 
it is  to  continue,  it  may  be  terminated  by  the  de- 
positor on  paying  all  that  would  become  due  to 
the  depositary  in  case  of  the  deposit  so  continu- 
ing. 

§  1856.  A  depo^^itary  for  hire  has  a  lien  for 
storage  charges,  which  is  regulated  by  the  title 
on  liens.  [New  section  added  March  31,  1891: 
Stats.  1891,  p.  470.    In  effect  immediately.] 

§  1857.  If,  from  any  cause  other  than  want  of 
ordinary  care  and  diligence  on  his  part,  a  deposi- 
tary for  hire  is  unable  to  deliver  perishable  prop- 
erty, baggage,  or  luggage  received  by  him  for  stor- 
age, or  to  collect  his  charges  for  storage  due  there- 
on, he  may  cause  such  property  to  be  sold,  in  open 
market,  to  satisfy  his  lien  for  storage;  provided, 
that  no  property  except  perishable  property  shall 
be  sold,  under  the  provisions  of  this  section,  up- 
on which  storage  charges  shall  not  be  due  and 
unpaid  for  one  year  at  the  time  of  such  sale. 
[New  section  added  March  31,  1891;  Stats.  1891, 
]).  470.    In  effect  immediately.] 


417  DEPOSIT.  §§  1859-1860 

AllTICLE  IV. 

INNKEEPERS. 

?  1859.    Innkeeper's   liability. 
§  1860.     How  exempted  from  liability. 
§  1861.     Lien  of  boarding  and  lodging-house  keepers. 
§  1S62.     Sale  of  baggage  by  boarding  or  lodging-house  keep- 
ers. 
§  1863.    Notices  in  hotels  and  boarding-houses. 

§  1859.  The  liability  of  an  innkeeper,  hotel- 
keeper,  boarding  and  lodging-house  keeper,  for 
losses  of  or  injuries  to  personal  property,  other 
than  money,  placed  by  his  guests,  boarders,  or 
lodgers  under  his  care,  is  that  of  a  depositary  for 
hire;  provided,  however,  that  in  no  case  shall 
such  liability  exceed  the  sum  of  one  hundred  dol- 
lars for  each  trunk  and  its  contents,  fifty  dol- 
lars for  each  valise  or  traveling  bag  and 
contents,  and  ten  dollars  for  each  box,  bun- 
dle, or  package  and  contents,  so  placed  under 
his  care,  unless  he  shall  have  consented  in  writ- 
ing with  the  owner  thereof  to  assume  a  greater 
liability.  [Amendment  approved  March  12,  1895; 
Stats.  1895,  p.  44.    In  effect  on  approval.] 

See  next  section. 

Refusing  to  receive  and  entertain  guests  a  mis- 
demeanor: Penal  Code,  sec.  3G5. 

Cubic  air  law:    See  post,  Appendix,  p.  801. 

§  1860.  If  an  innkeeper,  hotel-keeper,  board- 
ing-house or  lodging-house  keeper,  keeps  a  fire- 
proof safe,  and  gives  notice  to  a  guest,  boarder, 
or  lodger,  either  personally  or  by  putting  up  n 
printed  notice  in  a  prominent  place  in  the  office 
or  the  room  occupied  by  the  guest,  boarder,  or 
lodger,  that  he  keeps  such  a  safe  and  will  not  be 
liable  for  money,  jewelry,  documents,  or  other  ar- 
ticles of  unusual  value  and  small  compass,  un- 
less placed  therein,  he  is  not  liable,  except  so  far 


|§  1861,  1862  DEPOSIT.  418 

as  his  own  acts  shall  contribute  thereto,  for  any 
loss  of  or  injury  to  such  articles,  if  not  deposited 
with  him  to  be  placed  therein,  nor  in  any  case 
more  than  the  sum  of  two  hundred  and  fifty  dol 
lars  for  any  or  all  such  property  of  any  individ- 
ual guest,  boarder,  or  lodger,  unless  he  shall  have 
given  a  receipt  in  writing  therefor  to  such  guest, 
boarder,  or  lodger.  [Amendment  approved  March 
12,  1895;  Stats.  1895,  p.  44.    In  efeect  on  approval.! 

§  1861.  Hotel  men,  boarding-house  and  lodg 
ing-house  keepers,  shall  have  a  lien  upon  the  bag- 
gage and  other  property  of  value  of  their  guests, 
or  boarders,  or  lodgers,  brought  into  such  hotel, 
inn,  or  boarding  or  lodging-house  by  such  guests, 
or  boarders,  or  lodgers,  for  the  proper  charges  due 
from  such  guests,  or  boarders,  or  lodgers,  for  their 
accommodation,  board  and  lodging,  and  room  rent, 
and  such  extras  as  are  furnished  at  their  request, 
with  the  right  to  the  possession  of  such  baggage, 
or  other  property  of  value,  until  all  such  charges 
are  paid.  [New  section  approved  April  1,  1876; 
Amendments  1875-G,  p.  78.    In  effect  April  1,  187G.1 

Obtaining  accommodations  with  intent  to  de- 
fraud: See  Penal  Code,  sec.  537. 

§  1862.  Whenever  any  trunlv,  carpet  bag,  va- 
lise, box,  bundle,  or  other  baggage  has  hereto- 
fore come,  or  shall  hereafter  come,  into  the  pos- 
session of  the  keeper  of  any  hotel,  inn,  board- 
ing, or  lodging-house,  as  such,  and  has  remained, 
or  shall  remain,  unclaimed  for  the  period  of  six 
months,  such  keeper  may  proceed  to  sell  the  same 
at  public  auction,  and  out  of  the  proceeds  of  such 
sale  may  retain  the  charges  for  storage,  if  any, 
and  the  expense  of  advertising  and  sale  thereof; 
but  no  such  sale  shall  be  made  until  the  expira- 
tion of  four  weeks  from  the  first  publication  of  no- 
tice of  such  sale  in  a  newspaper  published  in  or 
nearest  the  city,  town,  village,  or  place  in  which 


119  DEPOSIT.  §  1863 

said  hotel,  inn,  boarding  or  lodging  house  is  situ- 
ated. Said  notice  shall  be  published  once  a  week, 
for  four  successive  weeks,  in  some  newspaper, 
daily  or  weekly,  of  general  circulation,  and  shall 
contain  a  description  of  each  trunk,  carpet  bag, 
valise,  box,  bundle,  or  other  baggage,  as  near  as 
may  be;  the  name  of  the  owner,  if  known;  the 
name  of  said  keeper,  and  the  time  and  place  of 
sale;  and  the  expenses  incurred  for  advertising 
shall  be  a  lien  upon  such  trunk,  carpet  bag,  va- 
lise, box,  bundle,  or  other  baggage,  in  a  ratable 
proportion,  according  to  the  value  of  such  piece  of 
property,  or  thing,  or  article  sold;  and  in  case 
any  balance  arising  from  such  sale  shall  not  be 
claimed  by  the  rightful  owner  within  one  week 
from  the  day  of  said  sale,  the  same  shall  be  paid 
into  the  treasury  of  the  county  in  which  such 
sale  took  place;  and  if  the  same  be  not  claimed  by 
the  owner  thereof,  or  his  legal  representatives, 
within  one  year  thereafter,  the  same  shall  be  paid 
into  the  general  fund  of  said  county.  [New  sec- 
tion approved  April  1,  1876;  Amendments  1875-6, 
p.  78.     In  effect  April  1,  1876.] 

§  1863.  Every  keeper  of  a  hotel,  inn,  boarding 
or  lodging  house,  shall  post,  in  conspicuous 
place,  in  the  office,  or  public  room,  and  in  every 
bedroom  of  said  hotel,  boarding-house,  inn,  or 
lodging-house,  a  printed  copy  of  this  section,  and  a 
statement  of  charge,  or  rate  of  charges,  by  the 
day,  and  for  meals  or  items  furnished,  and  for 
lodging.  No  charge  or  sum  shall  be  collected  or 
received  by  any  such  person  for  any  service  not 
actually  rendered,  or  for  any  item  not  actually 
delivered,  or  for  any  greater  or  other  sum  than 
he  is  entitled  to  by  the  general  rules  and  regula- 
tions of  said  hotel,  inn,  boarding  or  lodging  house. 
For  any  violation  of  this  or  any  provision  herein 
contained,  the  offender  shall  forfeit  to  the  injured 


§§  1864-1866  DEPOSIT.  420 

party  three  times  the  amount  of  the  sum  charged 
in  excess  of  what  he  is  entitled  to.  [New  section 
approved  April  ],  18TG;  Amendments  1875-6,  p.  78. 
In  effect  April  1,  1876.] 


ARTICLE  y. 

FINDING. 

§  1864.  Obligation   of   finder. 

§  1865.  Finder  to  notify  owner. 

§  1866.  Claimant    to    prove    ownership. 

§  1867.  Reward,  etc.,  to  finder. 

§  1868.  Finder  may  put  thing  found  on  storage. 

§  1869.  When  finder  may  sell  the  thing  found. 

§  1870.  How  sale  is  to  be  made. 

§  1871.  Surrender  of  thing  to  the  finder. 

§  1872.  Thing  abandoned. 

§  1864.  One  who  finds  a  thing  lost  is  not  bound 
to  take  charge  of  it,  hut  if  he  does  so  he  is  thence- 
forward a  depositary  for  the  owner,  with  the 
rights  and  obligations  of  a  depositary  for  hire. 

Depositary  for  hire:  See  ante,  sec.  1851  et  seq. 

§  1865.  If  the  finder  of  a  thing  knows  or  sus- 
pects who  is  the  owner,  he  must,  with  reasonable 
diligence,  give  him  notice  of  the  finding;  and  if 
he  fails  to  do  so,  he  is  liable  in  damages  to  the 
owner,  and  has  no  claim  to  any  reward  offered 
by  him  for  the  recovery  of  the  thing,  or  to  any 
compensation  for  his  trouble  or  expenses. 

Note.— If  owner  is  not  known  finder  must  re- 
port to  justice  of  the  peace  and  advertise.  If  he 
fails  to  do  so  he  forfeits  double  the  value  thereof 
to  the  owner:  Polit.  Code,  sees.  3136-3142;  Penal 
Code,  sec.  485. 

§  1866.  The  finder  of  a  thing  may,  in  good 
faith,  before  giving  it  up,  require  reasonable  proof 
of  ownership  from  any  person  claiming  it. 


421  DEPOSIT.  §§  1867-1872 

Lost  monej-  and  goods:  See  Folit.  Code,  sees. 
3136-3142. 

§  1867.  The  finder  of  a  thing  is  entitled  to 
compensation  for  all  expenses  necessarily  incurred 
by  him  in  its  preservation  and  for  any  other  ser- 
vice necessarily  performed  by  him  about  it,  and 
to  a  reasonable  reward  for  keeping  it. 

§  1868.  The  finder  of  a  thing  may  exonerate 
himself  from  liability  at  any  time  by  placing  it 
on  storage  with  any  responsible  person  of  good 
character,  at  a  reasonable  expense. 


a  thing  which  is  commonly  the  subject  of  sale, 
when  the  owner  cannot,  with  reasonable  diligence, 
be  found,  or  being  found,  refuses,  upon  demand, 
to  pay  the  lawful  charges  of  the  finder,  in  the 
following  cases: 

1.  When  the  thing  is  in  danger  of  perishing,  or 
of  losing  the  greater  part  of  its  value;  or, 

2.  When  the  lawful  charges  of  the  finder 
amount  to  two-thirds  of  its  value. 

Lost  money  and  goods:  See  Polit.  Code,  sees. 
3136-3142. 

§  1870.  A  sale  under  the  provisions  of  the  last 
section  must  be  made  in  the  same  manner  as  the 
sale  of  a  thing  pledged. 

Sale  of  pledge:  See  sees.  3000,  post,  et  seq. 

§  1871.  The  owner  of  a  thing  found  may  exon- 
erate himself  from  the  claims  of  the  finder  by 
surrendering  it  to  him  in  satisfaction  thereof. 

§  1872.  The  provisions  of  this  article  have  no 
application  to  things  which  have  been  intention- 
ally abandoned  by  their  owners. 

Civ.    Code.— 36. 


5§  1878,  1884  LOAN. 


CHAPTER  III. 

DEPOSIT  FOR  EXCHANGE. 
§  1878.    Relations   of   the    parties. 

§  1878.  A  deposit  for  exchange  transfers  to  the 
depositary,  the  title  to  the  thing  deposited,  and 
creates  between  him  and  the  depositor  the  rela- 
tion of  debtor  and  creditor  merely. 

Deposit  for  exchange  defined:  Sec.  1818,  ante. 

Loan  for  exchange:  See  post,  sec.  1902. 

TITLE  IV- 

LOAN. 

Chapter  1.    Loan  for  Use,  sees.  1884-1896. 

II.    Loan  for  Exchange,  sees.  1902-1906. 
III.    Loan  of  Money,  sees.  1912-1920. 

CHAPTER  I. 

LOAN  FOR  USE. 

§  1884.  Loan,   what. 

§  1885.  Title  to  property  lent. 

§  1886.  Care  required  of  borrower. 

§  1887.  Same. 

§  1888.  Degree  of  skill. 

§  1889.  Borrower,  when  to  repair  injuries. 

§  1890.  Use  of  thing  lent. 

§  1891.  Relending  forbidden. 

§  1892.  Borrower,  when  to  bear  expenses. 

§  1893.  Lender  liable  for  defects. 

§  1894.  Lender  may  require  return  of  thing  lent. 

§  1895.  When  returnable  without  demand. 

§  1896.  Place  of  return. 

§  1884.  A  loan  for  use  is  a  contract  by  which 
one  gives  to  another  the  temporary  possession  and 
use  of  personal  property,  and  the  latter  agrees 
to  return  the  same  thing  to  him  at  a  future  time, 
without  reward  for  its  use. 


t 


423  LOAN.  §§  1885-1892 

§  1885.  A  loan  for  use  does  not  transfer  the  ti- 
tle to  the  thing;  and  all  its  increase  during  the 
period  of  the  loan  belongs  to  the  lender. 

§  1886.  A  borro^Yer  for  use  must  use  great 
care  for  the  preservation  in  safety  and  in  good 
condition  of  the  thing  lent. 

§  1887.  One  who  borrows  a  living  animal  for 
use  must  treat  it  with  great  kindness,  and  pro- 
vide everything  necessary  and  suitable  for  it. 

Depositary  of  living  animals  for  keeping:  See 
ante,  sec.  1834. 

§  1888.  A  borrower  for  use  is  bound  to  have 
and  to  exercise  such  skill  in  the  care  of  the  thing 
lent  as  he  causes  the  lender  to  believe  him  to  pos- 
sess. 

Compare  with  sec.  1976. 

§  1889.  A  borrower  for  use  must  repair  all  de- 
teriorations or  injuries  to  the  thing  lent,  which  are 
occasioned  by  his  negligence,  however  slight. 

§  1890.  The  borrower  of  a  thing  for  use  may 
use  it  for  such  purposes  only  as  the  lender  might 
reasonably  anticipate  at  the  time  of  lending. 

See  next  section. 

§  1891.  The  borrower  of  a  thing  for  use  mast 
not  part  with  it  to  a  third  person,  without  the 
consent  of  the  lender. 

§  1892.  The  borrower  of  a  thing  for  use  must 
bear  all  its  expenses  during  the  loan,  except  such 
as  are  necessarily  incurred  by  him  to  preserve  it 
from  unexpected  and  unusual  injury.  For  such 
expenses  he  is  entitled  to  compensation  from  ».he 
lender,  who,  may.  however,  exonerate  himself  by 
surrendering  the  thing  to  the  borrower. 


§§  1893-1896  LOAN.  424 

§  1893.  The  lender  of  a  thing  for  use  muse  in- 
demnify the  borrower  for  damage  caused  by  de- 
fects or  vices  in  it,  which  he  I^new  at  the  cime 
of  lending,  and  concealed  from  the  borrower. 

See  also  ante,  see.  1833. 

Loan  for  exchange:  See  post,  sees.  1902,  1906. 

§  1894.  The  lender  of  a  thing  for  use  may  at 
any  time  require  its  return,  even  though  he  lent 
it  for  a  specified  time  or  purpose.  But,  if,  on  the 
faith  of  such  an  agreement,  the  borrower  has 
made  such  arrangements  that  a  return  of  the 
thing  before  the  period  agreed  upon  would  cause 
him  loss,  exceeding  the  benefit  derived  by  him 
from  the  loan,  the  lender  must  indemnify  him  for 
such  loss,  if  he  compels  such  return,  the  borrower 
not  having  in  any  manner  violated  his  duty. 

§  1895.  If  a  thing  is  lent  for  use  for  a  specified 
time  or  purpose,  it  must  be  returned  to  the  lender 
without  demand,  as  soon  as  the  time  has  expired, 
or  the  purpose  has  been  accomplished.  In  other 
cases  it  need  not  be  returned  until  demanded. 

§  1896.  The  borrower  of  a  thing  for  use  must 
return  it  to  the  lender,  at  the  place  contemplated 
by  the  parties  at  the  time  of  lending;  or  if  no  par- 
ticular place  was  so  contemplated  by  them,  then 
at  the  place  where  it  was  at  that  time. 


425  LOAN.  §§  1902-1806 

CHAPTER  II. 

LOAN  FOR  EXCHANGE. 

§  1902.  Loan  for  exchange,   what. 

§  1903.  Same. 

§  1904.  Title  to  property  lent. 

§  1905.  Contract  cannot  bo  modified  by  lender. 

§  1906.  Certain  sections  applicable. 

§  1902.  A  loan  for  exchange  is  a  contract  by 
which  one  delivers  personal  property  to  another, 
and  the  latter  agrees  to  return  to  the  lender  a 
similar  thing  at  a  future  time,  without  reward  for 
its  use. 

Loan  of  money  as  a  loan  for  exchange:  See  sec. 
1912. 

§  1903.    A  loan,  which  the  borrower  is  allowed 
by  the  lender  to  treat  as  a  loan  for  use,  or  for  ex- 
change, at  his  option,  is  subject  to  all  the  pro- 
visions of  this  chapter. 

§  1904.  By  a  loan  for  exchange  the  title  to  the 
thing  lent  is  transferred  to  the  borrower,  and  he 
must  bear  all  its  expenses,  and  is  entitled  to  all 

its  increase. 

§  1905.  A  lender  for  exchange  cannot  require 
the  borrower  to  fulfill  his  obligations  at  a  time, 
or  in  a  manner,  different  from  that  which  was 
originally  agreed  upon. 

§  1906.  Sections  1893,  1895,  and  1896,  apply  to 
a  loan  for  exchange. 


§§  1912-1915  LOAN.  423 

CHAPTER  III. 

LOAN  OF  MONEY. 

§  1912.  Loan  of  money. 

§  1913.  Loan  to  be  repaid  In  current  money. 

§  1914.  Loan  presumed  to  be  on  interest. 

§  1915.  Interest,  what. 

§  1916.  Annual  rate. 

§  1917.  Legal  interest. 

§  1918.  Same. 

§  1919.  Interest  becomes  part  of  principle,   when. 

§  1920.  Interest  on  judgment. 

§  1912.  A  loan  of  money  is  a  contract  by  whicli 
one  delivers  a  sum  of  money  to  another,  and  the 
latter  agrees  to  return  at  a  future  time  a  sum 
equivalent  to  that  which  he  borrowed.  A  loan  for 
mere  use  is  governed  by  the  Chapter  on  Loan  for 
Use. 

Interest:  See  sees.  1914  et  seq. 

§  1913.  A  borrower  of  money,  unless  there  is 
an  express  contract  to  the  contrary,  must  pay  the 
amount  due  in  such  money  as  is  current  at  the 
time  when  the  loan  becomes  due,  whether  such 
money  is  worth  more  or  less  than  tlie  actual 
money  lent. 

See  sec.  200;  see,  also,  sec.  3302,  post. 

§  1914.  Whenever  a  loan  of  money  is  made,  it 
is  presumed  to  be  made  upon  interest,  unless  it  is 
otherwise  expressly  stipulated  at  the  time  in  writ- 
ing. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  245.  In  effect  July  1, 
1874.] 

§  1915.  Interest  is  the  compensation  allowed 
by  law  or  fixed  by  the  parties  for  the  use.  or  for- 
bearance, or  detention  of  money.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  p. 
245.     In  effect  July  1,  1874.] 


427  LOAN.  §§  1916-1920 

§  1916.  When  a  rate  of  interest  is  prescribed 
by  a  law  or  contract,  without  specifying  the  pe- 
riod of  time  by  which  such  rate  is  to  be  calculated, 
it  is  to  be  deemed  an  annual  rate. 

§  1917.  Unless  there  is  an  express  contract  in 
writing,  fixing  a  different  rate,  interest  is  payable 
on  all  moneys  at  the  rate  of  seven  per  cent,  per 
annum,  after  they  become  due  on  any  instrument 
of  writing,  except  a  judgment,  and  on  moneys 
lent  or  due  on  any  settlement  of  accounts,  from 
the  day  on  which  the  balance  is  ascertained,  and 
on  moneys  received  to  the  use  of  another  and  de- 
tained from  him.  In  the  computation  of  interest 
for  a  period  less  than  a  year,  three  hundred  and 
sixty  days  are  deemed  to  constitute  a  year. 
[Amendment  approved  February  15,  1878;  Amend- 
ments 1877-8,  p.  87.    In  effect  April  16,  1878.] 

Interest  on  judgments:  See  infra,  sec.  1920. 

Compounding  interest:  See  infra,  sec.  1019. 

5  1918.  Parties  may  agree  in  writing  for  the 
payment  of  any  rate  of  interest,  and  it  shall  be 
allowed,  according  to  the  terms  of  the  agreement, 
until  the  entry  of  judgment. 

Stats.  1808,  553,  sec.  2:  Stats.  1870,  699,  sec.  1. 

^  1919.  The  parties  may,  in  any  contract  in 
writing  whereby  any  debt  is  secured  to  be  paid, 
airree  that  if  the  interest  on  such  debt  is  not 
punctually  paid,  it  shall  become  a  part  of  the 
principal,  and  thereafter  bear  the  same  rate  of 
interest  as  the  principal  debt. 

§  1920.  Interest  is  payable  on  judgments  re- 
covered in  the  courts  of  this  State,  at  the  rate  of 
seven  per  cent,  per  annum,  and  no  greater  rate, 
but  such  interest  must  not  be  compounded  in  any 
manner  or  form.     [Amendment  approved  March 


§§  1925-1927  HIRING.  428 

30,  1874;  Amendments  1873-4,   p.   245.     In  effect 
July  1,  1874.1 
Interest  as  damages:  See  post,  sec.  3287. 


TITLE  IV. 

HIRING. 

Chapter  I.    Hiring  in  General,  §§  1925-1935. 

II.    Hiring  of  Real  Property,  §§  1941-1950. 
III.    Hiring  of  Personal  Property,  §§  1955- 
1959. 

CHAPTER  I. 

HIRING  IN   GENERAL. 

§  1925.  Hiring,   what. 

§  1926.  Products  of  thing. 

§  1927.  Quiet  possession. 

§  1928.  Degree  of  care,  etc.,  on  part  of  hirer. 

§  1929.  Must  repair  injuries,  etc. 

§  1930.  Thing  let  for  a  particular  purpose. 

§  1931.  \vhen  letter  may  terminate  the  hiring. 

§  1932.  When  hirer  may  terminate   the  hiring. 

§  1933.  When  hiring  terminates. 

§  1934.  When  terminated  by  death,   etc.,   of  party. 

§  1935.  Apportionment  of  hire. 

§  1925.  Hiring  is  a  contract  by  which  one  gives 
to  another  the  temporary  possession  and  use  of 
property,  other  than  money,  for  reward,  and  the 
latter  agrees  to  return  the  same  to  the  former 
at  a  future  time. 

Hiring  personalty:  See  post,  sees.  1955  et  seq. 

§  1926.  The  products  of  a  thing  hired,  during 
the  hiring,  belong  to  the  hirer. 

§  1927.  An  agreemeni:  to  let  upon  hire  binds 
the  letter  to  secure  to  the  hirer  the  quiet  posses- 
sion of  the  thing  hired   during  the  term  of  the 


429  HIRING.  §§  1928-1932 

hiring,  against  all  persons  lawfully  claiming  the 
same. 

Duty  of  letter  of  building  in  this  respect:  See 
post,  sec.  1941. 

Duty  of  letter  of  personalty  likewise:  See  post, 
sec.  1955. 

§  1928.  The  hirer  of  a  thing  must  use  ordinary 
care  for  its  preservation  in  safety  and  in  good 
condition. 

§  1929.  The  hirer  of  a  thing  must  repair  all 
deteriorations  or  injuries  thereto  occasioned  by  his 
ordinary  negligence. 

Repairs.— This  requirement  results  from  the  rule 
of  the  previous  section,  and  the  same  rule  applies 
to  realty:  See  post,  sec.  1941.  With  respect  to  the 
consequence  of  not  complying  with  its  provisions, 
see  sec.  1931,  infra. 

§  1930.  When  a  thing  is  let  for  a  particular 
purpose  the  hirer  must  not  use  it  for  any  other 
purpose:  and  if  he  does,  the  letter  may  hold  him 
responsible  for  its  safety  during  such  use  in  all 
events,  or  may  treat  the  contract  as  thereby  re- 
scinded. 

§  1931.  The  letter  of  a  thing  may  terminate  the 
hiring  and  reclaim  the  thing  before  the  end  of  the 
term  agreed  upon: 

1.  When  the  hirer  uses  or  permits  a  use  of  the 
thing  hired  in  a  manner  contrary  to  the  agree- 
ment of  the  parties;  or, 

2.  When  the  hirer  does  not,  within  a  reasonable 
time  after  request,  make  such  repairs  as  he  is 
bound  to  make. 

§  1932.    The  hirer  of  a  thing  may  terminate  the 
hiring  before  the  end  of  the  term  agreed  upon: 
1.    When  the  letter  does  not,  within  a  reason- 


§§  1933-1935  HIRING.  430 

able  time  after  request,  fulfill  his  obligations,  if 
any,  as  to  placing-  and  securing  the  hirer  in  the 
quiet  possession  of  the  thing  hired,  or  putting  it 
into  good  condition,  or  repairing;  or, 

2.  When  the  greater  part  of  the  thing  hired,  or 
that  part  which  was  and  Avhich  the  letter  had  at 
the  time  of  the  hiring  reason  to  believe  was  the 
material  inducement  to  the  hirer  to  enter  into  the 
contract,  perishes  from  any  other  cause  than  the 
ordinary  negligence  of  the  hirer. 

§  1933.    The  hiring  of  a  thing  terminates: 

1.  At  the  end  of  the  term  agreed  upon; 

2.  By  the  mutual  consent  of  the  parties; 

3.  By  the  hirer  acquiring  a  title  to  the  thing 
hired  superior  to  that  of  the  letter;  or, 

4.  By  the  destruction  of  the  thing  hired. 

§  1934.  If  the  hiring  of  a  thing  is  terminable 
at  the  pleasure  of  one  of  the  parties,  it  is  termi- 
nated by  notice  to  the  other  of  his  death  or  in- 
capacity to  contract.  In  other  cases  it  is  not  ter- 
minated thereby. 

§  1935.  When  the  hiring  of  a  thing  is  ter- 
minated before  the  time  originally  agreed  upon, 
the  hirer  must  i)ny  the  due  proportion  of  the  hire 
for  such  use  as  he  has  actually  made  of  the  thing, 
unless  such  use  is  merely  nominal,  and  of  no  ben- 
efit to  him. 

For  the  compensation  to  which  a  depositary  for 
hire  is  entitled  upon  a  termination  of  the  deposit, 
see  ante,  sees.  1853-1855. 


431  HIRING.  §§  1941-1943 

CHAPTER  II. 

HIRING  OF   REAL  PROPERTY. 

§  1941.  Lessor  to  make  dwelling-house  fit  for  its  purpose. 

§  1942.  \v  hen  lessee  may  make  repairs,  etc. 

§  1943.  Term  of  hiring  when  no  limit  is  fixed. 

§  1944.  Hiring  of  lodgings  for  indefinite  term. 

§  1945.  Renewal  of  lease  by  lessee's  continued  possession. 

§  1943.  Notice  to  quit. 

§  1947.  Rent,  when  payable. 

§  1948.  Attornment  of  a  tenant  to  a  stranger. 

§  1949.  Tenant  must  deliver  notice  served  on  him. 

5  1950.  Letting  parts  of  rooms  forbidden. 

§  1941.  The  lessor  of  a  building  intended  for 
the  occupation  of  human  beings  must,  in  the  ab- 
sence of  an  agreement  to  the  contrary,  put  it  into 
a  condition  lit  for  such  occupation,  and  repair  all 
subsequent  dilapidations  thereof,  which-  render 
it  untenantable,  except  such  as  are  mentioned 
in  section  nineteen  hundred  and  twenty-nine. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  245.     In  effect  July  1,  1874.] 

§  1942.  If  within  a  reasonable  time  after  no- 
tice to  the  lessor,  of  dilapidations  which  he  ought 
to  repair,  he  neglects  to  do  so,  the  lessee  may  re- 
pair the  same  himself,  where  the  costs  of  such  re- 
pairs do  not  require  an  expenditure  greater  than 
one  month's  rent  of  the  premises,  and  deduct  the 
expenses  of  such  repairs  from  the  rent,  or  the 
lessee  may  vacate  the  premises,  in  which  case  he 
shall  be  discharged  from  further  payment  of  rent, 
or  performance  of  other  conditions.  [Amend- 
ment approved  March  30,  1874;  Amendments  1873- 
4,  p,  246.     In  effect  July  1,  1874.] 

§  1943.  A  hiring  of  real  property,  other  than 
lodgings  and  dwelling-houses,  in  places  where 
there  is  no  usage  on  the  subject,  is  presumed  to 


§§  1944-194S  HIRING.  432 

be  for  one  year  from  its  commencement,  unless 
other^yise  expressed  in  the  hiring. 

§  1944.  A  hiring  of  lodgings  or  a  dwelling- 
house  for  an  unspecified  term  is  presumed  to  have 
been  made  for  such  length  of  time  as  the  parties 
adopt  for  the  estimation  of  the  rent.  Thus  a  hir- 
ing at  a  monthly  rate  of  rent  is  presumed  to  be 
for  one  month.  In  the  absence  of  any  agreement 
respecting  the  length  of  time  or  the  rent,  the  hir- 
ing is  presumed  to  be  monthly. 

§  1945.  If  a  lessee  of  real  property  remains  in 
possession  thereof  after  the  expiration  of  the  hir- 
ing, and  the  lessor  accepts  rent  from  him,  the 
parties  are  presumed  to  have  renewed  the  hiring 
on  the  same  terms  and  for  the  same  time  not  ex- 
ceeding one  month  when  the  rent  is  payable 
monthly,  nor  in  any  case  one  year. 

§  1946.  A  hiring  of  real  property,  for  a  term 
not  specified  by  the  parties  is  deemed  to  be  re- 
newed as  stated  in  the  last  section,  at  the  end  of 
the  term  implied  by  law,  unless  one  of  the  par- 
ties gives  notice  to  the  other  of  his  intention  to 
terminate  the  same,  at  least  as  long  before  the 
expiration  thereof  as  the  term  of  the  hiring  itself, 
not  exceeding  one  month. 

Termination  of  estates  at  will:  See  ante,  sees. 
789  et  sea. 

§  1947.  When  there  is  no  usage  or  contract  to 
the  contrary,  rents  are  payable  at  the  termina- 
tion of  the  holding,  when  it  does  not  exceed  one 
year.  If  the  holding  is  by  the  day,  week,  month, 
quarter,  or  year,  rent  is  payable  at  the  termina- 
tion of  the  respective  periods,  as  it  successively 
becomes  due. 

§  1948.  The  attornment  of  a  tenant  to  a 
stranger  is  void,  unless  it  is  made  with  the  consent 


433  HIRING.  §§  1949,  13&0 

of  the  landlord,  or  in  consequence  of  a  judgment 
of  a  court  of  competent  jurisdiction. 

Grants  of  rents  or  reversions:  See  ante,  sec. 
111. 

Eights  of  lessor  and  lessee,  on  transfer  of  realty: 
See  ante,  sees.  821  et  sea. 

§  1949.  Every  tenant  vrho  receives  notice  of 
any  proceeding  to  recover  the  real  property  occu- 
pied by  him,  or  the  possession  thereof,  must  im- 
mediately inform  his  landlord  of  the  same,  and 
also  deliver  to  the  landlord  the  notice,  if  in  writ- 
ing, and  is  responsible  to  the  landlord  for  all  dam- 
ages which  he  may  sustain  by  reason  of  any 
omission  to  inform  him  of  the  notice,  or  to  deliver 
it  to  him  if  in  writing.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  246.  In 
effect  July  1,  1874.] 

§  1950.  One  who  hires  part  of  a  room  for  a 
dwelling  is  entitled  to  the  whole  of  the  room,  not- 
withstanding any  agreement  to  the  contrary;  and 
if  a  landlord  lets  a  room  as  a  dwelling  for  more 
than  one  family,  the  person  to  whom  he  first  lets 
any  part  of  it  is  entitled  to  the  possession  of  the 
whole  room  for  the  term  agreed  upon,  and  every 
tenant  in  the  building,  under  the  same  landlord, 
is  relieved  from  all  obligation  to  pay  rent  to  him 
while  such  double  letting  of  any  room  continues. 

Cubic  air  law:    See  post,  Appendix,  p.  801. 

Civ.   Code— 37 


§§  1855-1959  HIRING.  434 

CHAPTER  III. 

HIRING  OF  PERSONAL  PROPERTY. 

§  1955.  Obligations  of  letter  of  personal  property. 

§  1956.  Ordinary  expenses. 

§  1957.  Extraordinary  expenses. 

§  1958.  Return  of  thing  hired. 

§  1959.  Charter-party,  what. 

§  1955.  One  ^'lio  lets  personal  property  must 
deliver  it  to  the  hirer,  secure  his  quiet  enjoyment 
thereof  against  all  lawful  claimants,  put  it  into  a 
condition  fit  for  the  purpose  for  which  he  lets  it, 
and  repair  all  deteriorations  thereof  not  occa- 
sioned by  the  fault  of  the  hirer  and  not  the 
natural  result  of  its  use. 

Quiet  enjoyment:  See  sec.  1927  ante. 

§  1956.  A  hirer  of  personal  property  must  bear 
all  such  expenses  concerning  it  as  might  naturally 
be  foreseen  to  attend  it  during  its  use  by  him.  All 
other  expenses  must  be  borne  by  the  letter. 

§  1957.  If  a  letter  fails  to  fulfill  his  obligations, 
as  prescribed  by  section  1955,  the  hirer,  after  giv- 
ing him  notice  to  do  so,  if  such  notice  can  con- 
veniently be  given,  may  expend  any  reasonable 
amount  necessary  to  make  good  the  letter's  de- 
fault, and  may  recover  such  amount  from  him. 

§  1958.  At  the  expiration  of  the  term  for  which 
personal  property  is  hired,  the  hirer  must  return 
it  to  the  letter  at  the  place  contemplated  by  the 
parties  at  the  time  of  hiring;  or,  if  no  particular 
place  was  so  contemplated  by  them,  at  the  place 
at  which  it  was  at  that  time. 

§  1959.  The  contract  by  which  a  ship  is  let  is 
termed  a  charter  party.  By  it  the  owner  may 
either  let  the  capacity  or  burden  of  the  ship,  con- 


435 


SERVICE. 


§  1965 


tinuing  the  employuient  of  the  owner's  master, 
crew,  and  equipments,  or  may  surrender  the  entire 
ship  to  the  charterer,  who  then  provides  them 
himself.  The  master  or  a  part  owner  may  be  a 
charterer. 
See  ante.  sec.  965. 


TITLE  VI. 

SERVICE. 

Chapter  I.    Service  with  Employment,  sees.  1965- 
2003. 
II.     Particular  Employments,    sees.    2009- 
2072. 
III.    Service    without    Employment,    sees. 
2U78-2079. 

CHAPTER  I. 
SERVICE  WITH  EMPLOYMENT. 

Article  I.  Definition  of  Employment,   §  1965. 

II.  Obligations  of  the  Employer,  §§  1969-1871. 

III.  Obligations  of  the  Employer,  §§  1975-1992. 

IV.  Termination  of  Employment,  §§  1996-2003. 

DEFINITION  OF  EMPLOYMENT. 

ARTICLE  I. 

§  1965.    Emplojrment,   what. 


§  1965.  The  contract  of  employment  is  a  con 
tract  by  which  one,  who  is  called  the  employpr, 
engatres  another,  who  is  called  the  employee,  to  <lo 
something  for  the  benefit  of  the  employer,  or  of  a 
third  person. 


I 


§§  19C9-1971  SERVICE.  436 

ARTICLE  II. 
OBLIGATIONS    OP    THE    EMPLOYER. 

§  1969.     Vv  hen   employer  must   indemnify  employee. 

§  1970.    When  not. 

§  1971.     Employer  to  indemnify  for  his  own  negligence. 

§  1969.  An  employer  must  indemnify  his  em- 
ployee except  as  prescribed  in  tlie  next  section,  for 
all  that  he  necessarily  expends  or  loses  in  direct 
consequence  of  the  discharge  of  his  duties  as  such, 
or  of  his  obedience  to  the  directions  of  the  em- 
ployer, even  though  unlawful,  unless  the  em- 
ployee, at  the  time  of  obeying  such  directions,  be- 
lieved them  to  be  unlawful. 

Acts  giving  liens  to  laborers:  See  post,  pp.  743, 
744,  787. 

§  1970.  An  employer  is  not  bound  to  indemnify 
his  employee  for  losses  suffered  by  the  latter  in 
consequence  of  the  ordinary  risks  of  the  business 
in  which  he  is  employed,  nor  in  consequence  of  the 
negligence  of  another  person  employed  by  the 
same  emploj^er  in  the  same  general  business,  un- 
less he  has  neglected  to  use  ordinary  care  in  the 
selection  of  the  culpable  employee. 

§  1971.  An  employer  must  in  all  cases  indemni- 
fy his  employee  for  losses  caused  by  the  former's 
want  of  ordinary  care. 


437  SERVICE.  §§  1975-1978 

ARTICLE  III. 

OBLIGATIONS    OF    THE    EMPLOYEE. 

§  1975.  Duties  of  gratuitous   employee. 

§  1976.  Same. 

§  1977.  Same. 

§  1978.  Duties  of  employee  for  reward. 

5  1979.  Duties  of  employee  for  his  own  benefit. 

§  1980.  Contracts  for  service  limited  to  two  years. 

§  19S1.  Employee  must  obey  employer. 

§  19S2.  Employee  to  conform  to  usage. 

§  1983.  Degree   of   skill    required. 

§  1984.  Must  use  what  skill  he  has. 

§  1985.  What  belongs  to  employer. 

§  1986.  Duty  to  account. 

§  1987.  Employee  not  bound  to  deliver  without  demand. 

§  1988.  Preference  to  be  given  to  employers. 

§  1989.  Responsibility  of  employee  for  substitute. 

§  1990.  Responsibility  for  negligence. 

§  1991.  Surviving  employee. 

§  1992.  Confidential  employment. 

§  1975.  One  who,  witliout  consideration,  under- 
talies  to  do  a  service  for  another,  is  not  bound  to 
perform  the  same,  but  if  he  actually  enters  upon 
its  performance,  he  must  use  at  least  slight  care 
and  diligence  therein. 

Service  without  employment:  See  post,  sec.  2078. 

Obligations  of  gratuitous  carrier:  Sec.  2089. 

§  1976.  One  who,  by  his  own  special  request, 
induces  another  to  intrust  him  with  the  perform- 
ance of  a  service,  must  perform  the  same  fully. 
In  other  cases,  one  who  undertakes  a  gratuitous 
service  may  relinquish  it  at  any  time. 

Compare  with  sec.  1888. 

§  1977.  A  gratuitous  employee,  who  accepts  a 
written  power  of  attorney,  must  act  under  it  so 
long  as  it  remains  in  force,  or  until  he  gives  notice 
to  his  employer  that  he  will  not  do  so. 

§   1978.    One   who,     for   a    good     consideration. 


$$  1979-1982  SERVISE.  438 

agrees  to  serve  auotlier.  must  perform  the  ser- 
vice, and  must  use  oraninry  care  aud  diligence 
therein,  so  long  as  he  is  thus  employed. 

Employee  to  use  ordinary  care. — He  is  bound  to 
exercise  a  reasonable  degree  of  sliill,  unless  his 
employer  knows  of  his  want  of  skill:  Sec.  1983; 
and  is  always  bound  to  use  such  skill  as  he  pos- 
sesses: Sec.  1984.  For  the  employee's  liability  for 
his  culpable  negligence,  see  sec.  1990,  post. 

§  1979.  One  who  is  employed  at  his  own  re- 
quest to  do  that  whicli  is  more  for  his  own  ad- 
vantage than  for  that  of  bis  employer,  must  use 
great  care  and  diligence  therein  to  protect  the  in- 
terest of  the  latter. 

§  1980.  A  contract  to  render  personal  service, 
other  than  a  contract  of  apprenticeship,  as  provid- 
ed in  the  Chapter  on  Master  aud  Servant,  cannot 
be  enforced  as  against  the  employee  beyond  the 
term  of  two  years  from  the  commencement  of  ser- 
vice under  it;  but  if  the  employee  voluntarily  con- 
tinues his  service  under  it  beyond  that  time,  the 
contract  may  be  referred  to  as  affording  a  pre- 
sumptive measure  of  the  compensation. 

Master  and  servant:  See  post,  sec.  2009;  and  as 
to  apprenticeship,  see  ante,  sees.  264  et  seq. 

§  1981.  An  employee  must  substantially  com- 
ply with  all  the  directions  of  his  employer  concern- 
ing tlie  service  on  which  he  is  engaged,  except 
where  sucli  obedience  is  impossible  or  unlawful, 
or  would  impose  new  and  unreasonable  burdens 
upon  the  employee.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  246.  In  effect  July 
1,  1874.] 

Obedience  required  from  factor:  Sec.  2027. 

§  1982.  An  employee  must  perform  his  service 
in  conformity  to  the  usage  of  the  place  of  per- 
formance,  unless  otherwise  directed   by   his   em- 


439  SERVICE.  §§  1983-1988 

ployer.  or  unless  it  is  impracticable,  or  manifestly 
injm-iotis  to  liis  employer  to  do  so. 

§  1983.  An  employee  is  bound  to  exercise  a  rea- 
sonable degree  of  skill,  unless  his  employer  has 
notice,  before  employing  him,  of  his  want  of  skill. 

§  1984.  An  employee  is  always  bound  to  use 
such  skill  as  he  possesses,  so  far  as  the  same  is 
required,  for  the  service  specified.  [Amendment, 
approved  March  30,  1874;  Amendments  1873-4,  247. 
In  effect  July  1,  1874.] 

§  1985.  Everything  which  an  employee  ac- 
quires by  virtue  of  his  employment,  except  the 
compensation,  if  any,  which  is  due  to  him  from 
his  employer,  belongs  to  the  latter,  whether  ac- 
quired lawfully  or  unlawfully,  or  during  or  after 
the  expiration  of  the  term  of  his  employment. 

§  1986.  An  employee  must,  on  demand,  render 
to  his  employer  just  accounts  of  all  his  transac- 
tions in  the  course  of  his  service,  as  often  as  may 
be  reasonable,  and  must,  without  demand,  give 
prompt  notice  to  his  employer  of  everything  which 
he    receives    for   his    account. 

§  1987.  An  employee  who  receives  anything  on 
account  of  his  employer,  in  any  capacity  other 
than  that  of  a  mere  servant,  is  not  bound  to  de- 
liver it  to  him  until  demanded,  and  is  not  at  liber- 
ty to  send  it  to  him  from  a  distance,  without  de- 
mand, in  any  mode  involving  greater  risk  than 
its  retention  by  the  employee  himsslf. 

Servant  to  pay  over  without  demand:  See  sec. 
2014. 

§  1988.  An  employee  who  has  any  business  to 
transact  on  his  own  account,  similar  to  that  in- 
trusted to  him  by  his  employer,  must  always  give 
the  latter  the  preference.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4.  247.  In  ef- 
fect July  1,  1874.] 


§§  19S9-1996  SERVICE.  440 

§  1989.  An  employee  who  is  expressly  author- 
ized to  employ  a  substitute  is  liable  to  his  principal 
only  for  want  of  ordinary  care  in  his  selection. 
The  substitute  is  directly  responsible  to  the  prin- 
cipal. 

Delegation  of  agent's  authority:  See  post,  sec. 
2349  et  seq. 

§  1990.  An  employee  who  is  guilty  of  a  culpa- 
ble degree  of  negligence  is  liable  to  his  employer 
for  the  damage  thereby  caused  to  the  latter;  and 
the  employer  is  liable  to  him,  if  the  service  is  not 
gratuitous,  for  ihe  value  of  such  services  only 
as  are  properly  rendered. 

§  1991.  Where  service  is  to  be  rendered  by  two 
or  more  persons  jointly,  and  one  of  them  dies,  the 
survivor  must  act  alone,  if  the  service  to  be  ren- 
dered is  such  as  he  can  rightly  perform  without 
the  aid  of  the  deceased  person,  but  not  otherwise. 

§  1992.  The  obligations  peculiar  to  confidential 
employments  are  defined  in  the  Title  on  Trusts. 

Confidential  employments:  See  title  on  trusts, 
post,  sees.  2215  et  seq. 


ARTICLE  IV. 

TERMINATION   OF  EMPLOYMENT. 

§  1996.  Termination  by  death,  etc.,  of  employer. 

§  1997.  Employment,  how  terminated. 

§  1998.  Continuance  of  service  in  certain  cases. 

§  1999.  Termination  at  will. 

§  2000.  Termination  by  employer  for  fault. 

§  2001.  Termination  by  employee  for  fault. 

§  2002.  Com.pensation  of  employee  dismissed  for  cause. 

§  2003.  Compensation   of  employee  leaving  for  cause. 

§  1996.  Every  employment  in  which  the  power 
of  the  employee  is  not  coupled  with  an  interest 
in  its  subject  is  terminated  by  notice  to  him  of: 


441  SERVICE.  §§  1997-2000 

1.  Tlie  death  of  the  employer;  or, 

2.  His  legal  incapacity  to  contract. 
Termination  of  agency:  See  post,  sees.  2355  et 

seq. 

§  1997.    Every  employment  is  terminated: 

1.  By  the  expiration  of  its  appointed  term; 

2.  By  the  extinction  of  its  subject; 

3.  By  the  death  of  the  employee;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 
Termination  of  employment:  See  last  section. 
Termination  of  agency  generally:  See  sec.  2355, 

post,  et  seq. 

§  1998.  An  employee,  unless  the  term  of  his 
service  has  expired,  or  unless  he  has  a  right  to  dis- 
continue it  at  any  time  without  notice,  must  con- 
tinue his  service  after  notice  of  the  death  or  in- 
capacity of  his  employer,  so  far  as  is  necessary  to 
protect  from  serious  injury  the  interests  of  the 
employer's  successor  in  interest,  until  a  reasonable 
time  after  notice  of  the  facts  has  been  communi- 
cated to  such  successor.  The  successor  must  com- 
pensate the  employee  for  such  service  according  to 
the  terms  of  the  contract  of  employment. 

§  1999.  An  employment  having  no  specified 
term  may  be  terminated  at  the  will  of  either  par- 
ty, on  notice  to  the  other,  except  where  otherwise 
provided  by  this  title. 

§  2000.  An  employment,  even  for  a  specified 
term,  may  be  terminated  at  any  time  by  the  em- 
ployer, in  case  of  any  willful  broach  of  duty  by 
the  employee  in  the  course  of  his  employment,  or 
in  case  of  his  habitual  neglect  of  his  duty  or 
continued  incapacity  to  perform  it. 

Servant  when  mav  be  discharged:  See  post,  sec. 
2015. 

Seamen,  when  may  be  discharged:  See  post,  see. 
2050;  wrongful  discharge  of  seamen,  post,  sec. 
2057. 


§§  2001-2003  SERVICE.  442 

§  2001.  An  employment,  even  for  a  specified 
term,  may  be  terminated  by  tlie  employee  at  any 
time,  in  case  of  any  willful  or  permanent  breach 
of  the  obligations  of  his  employer  to  him  as  an 
employee. 

Employee's  compensation  in  such  case:  See  post, 
sec.  2003. 

§  2002.  An  employee,  dismissed  by  his  employ- 
er for  good  cause,  is  not  entitled  to  any  compen- 
sation for  services  rendered  since  the  last  day  up- 
on which  a  payment  became  due  to  him  under  the 
contract. 

Discharging  servant:  See  sec.  2015. 

§  2003.  An  employee  who  quits  the  service  of 
his  employer  for  good  cause  is  entitled  to  such 
proportion  of  the  compensation  wl  ich  would  be- 
come due  in  case  of  full  performance,  as  the  ser- 
vices which  he  has  already  rendered  bear  to  the 
services  which  he  was  to  render  as  full  perform- 
ance. 

Terminating  employment  by  employee:  See  sup- 
ra, sec.  2001. 


SERVICE.  §§  200&,  2010 


CHAPTER  II. 


PARTICULAR   EMPLOYMENTS. 

Article  I.  Master  and  Servant,  §§  2009-2015. 

II.  Agents,  §§  2019-2022. 

III.  Factors,    §§  2026-2030. 

IV.  Shipmasters,   §§   2034-2044. 

V.  Mates  and  Seamen,  §§  2048-2066. 

VI.  Ship's    Managers,    §§   2070-2072. 


ARTICLE  I. 

MASTER  AND  SERVANT. 

§  2009.  Servant,  what. 

I  2010.  Term  of  hiring. 

§  2011.  Same. 

5  1012.  Renewal  of  hiring. 

§  2013.  Time  of  service. 

§  2014,  Servant  to  pay  over  without  demand. 

§  2015.  When  servant  may  be  discharged. 

§  2009.  A  servant  is  one  who  is  employed  to 
render  personal  service  to  his  employer,  otherwise 
than  in  the  pursuit  of  an  independent  calling,  and 
who  in  such  service  remains  entirely  under  the 
control  and  direction  of  the  latter,  who  is  called 
his  master. 

Employer  and  employee:  See,  generally,  sees. 
1965  et  seq. 

Obligations  of  employer:  Sec.  1969  et  seq. 

Obligations  of  employee:  Sees.  1975  et  seq. 

§  2010.  A  servant  is  presumed  to  have  been 
hired  for  such  length  of  time  as  the  parties  adopt 
for  the  estimation  of  wages.  A  hiring  at  a  yearly 
rate  is  presumed  to  be  for  one  year:  a  hiring  at  a 
daily  rate,  for  one  day:  a  hiring  by  piece  work, 
for  no  specified  term. 

Act  providing  for  payment  of  wages  of  mechan- 


§§  2011-2015  SERVICE.  444 

ics  and  laborers   employed   by   corporations:   See 
post,  Appendix. 

§  2011.  In  the  absence  of  any  asrreement  or 
custom  as  to  the  term  of  service,  the  time  of  pay- 
ment, or  rate  or  value  of  wages,  a  servant  is  pre- 
sumed to  be  hired  by  the  month,  at  a  monthly 
rate  of  reasonable  wages,  to  be  paid  when  the  ser- 
vice is  performed. 

§  2012.  Where,  after  the  expiration  of  an 
agreement  respecting  the  wages  and  the  term  of 
service,  the  parties  continue  the  relation  of  mas- 
ter and  servant,  they  are  presumed  to  have  renew- 
ed the  agreement  for  the  same  wages  and  term 
of  service. 

§  aoi'S.  The  entire  time  of  a  domestic  servant 
belongs  to  the  master:  and  the  time  of  other 
servants  to  such  extent  as  is  usual  in  the  business 
in  which  they  serve,  not  exceeding  in  any  case  ten 
hours  in  the  day. 

§  2014.  A  servant  must  deliver  to  his  master, 
as  soon  as  with  reasonable  diligence  he  can  find 
him,  everything  that  he  receives  for  his  account, 
without  demand;  but  he  is  not  bound,  without 
orders  from  his  master,  to  send  anything  to  him 
through  another  person. 

One  who  appropriates  to  his  own  use  property 
of  his  employer  is  guilty  of  embezzlement.  Penal 
Code,  sec.  508. 

Employee  not  bound  to  deliver  to  employer  with- 
out  demand:  See  sec.  1987. 

Fraudulent  appropriation  by  servant  is  embez- 
zlement: Sec.  508. 

§  2015.  A  master  may  discharge  any  servant, 
other  than  an  apprentice,  whether  engaged  for  a 
fixed  term  or  not: 

1.    If  he  is  guilty  of  misconduct  in  the  course 


445  SERVICE.  §§  2019-2022 

of  bis  service,  or  of  gross  immorality,  though  un- 
connected with  the  same;  or, 

2.  If,  being  employed  about  the  person  of  the 
master,  or  in  a  confidential  position,  the  master 
discovers  that  he  has  been  guilty  of  misconduct, 
before  or  after  tlie  commencement  of  his  service, 
of  such  a  nature  that,  if  the  master  had  known 
or  contemplated  it,  he  would  not  have  so  employed 
him. 

Termination  of  employment:  See  sec.  2001. 

Compensation  of  employee  dismissed  for  cause: 
See  ante,  sec.  2002. 

ARTICLE  II. 

AGENTS. 

§  2019.  Agent  to   conform   to   his   authority. 

§  2020.  Must  keep  his  principal  informed. 

§  2021.  Collecting  agent. 

§  2022.  Responsibility   of   subagent. 

§  2019.  An  agent  must  not  exceed  the  limits  of 
his  actual  authority,  as  defined  by  the  Title  on 
Agency. 

Agency:  Sees.  2295  et  seq. 

Actual  authority:  Sec.  231(3.  post. 

§  2020.  An  agent  must  use  ordinary  diligence 
to  keep  his  principal  informed  of  his  acts  in  the 
course  of  the  agency. 

§  2021.  An  agent  employed  to  collect  a  negotia- 
ble instrument  must  collect  it  promptly,  and  take 
all  measures  necessary  to  charge  the  parties  there- 
to, in  case  of  its  dishonor;  and,  if  it  is  a  bill  of  ex- 
change, must  present  it  for  acceptance  with  rea- 
sonable diligence. 

§  2022.    A  mere  agent  of  an  agent  is  not  re- 
sponsible as  such  to  the  principal  of  the  latter. 
Civ.    Code.— 38. 


§§  2026-2029  SERVICE.  446 

ARTICLE  III. 

FACTORS. 

§  2026.  Factor,    what. 

§  2027.  Obedience  required  from  factor. 

§  2028.  Sales  on  credit. 

§  2029.  Liability  of  factor  under  guaranty  commission. 

§  2030.  Factor  cannot  relieve  himself  from  liability. 

§  2026.  A  factor  is  an  agent  who,  in  the  pursuit 
of  an  independent  calling,  is  employed  by  another 
to  sell  property  for  him,  and  is  vested  by  the  lat- 
ter with  the  possession  or  control  of  the  property, 
or  authorized  to  receive  payment  therefor  from  the 
pui'chaser. 

Factor's  authority:  See  sees.  2368,  2369. 

Factor's  power  to  pledge  principal's  goods:  See 
sees.  2368,  2991. 

§  2027.  A  factor  must  obey  the  instructions  of 
his  principal  to  the  sami^  extent  as  any  other  em- 
ployee, notwithstanding  any  advances  he  may 
have  made  to  his  principal  upon  the  property  con- 
signed to  him,  except  tliat  if  the  principal  forbids 
him  to  sell  at  the  market  price,  he  may,  neverthe- 
less, sell  for  his  reimbursement,  after  giving  to 
his  principal  reasonable  notice  of  his  intention  to 
do  so.  and  of  the  time  and  place  of  sale  and  pro- 
ceeding in  all  respects  as  a  pledgee. 

Obedience  required  from  employees  generally: 
see.  1981. 

§  2028.  A  factor  may  sell  property  consigned  to 
him  on  such  credit  as  is  usual;  but.  having  once 
agreed  with  the  purchaser  upon  the  term  of  cred- 
it, may  not  extend  it. 

Authority  to  sell  on  credit.— Duty  of  the  factor 
to  inquire  into  the  responsibility  of  the  purchaser. 
See  sec.  2368. 

§  2029.  A  factor  who  charges  his  principal 
with  a  guaranty  commission  upon  a  sale,  thereby 
assumes  absolutely  to  pay  the  price  Avhen  it  falls 


447  SERVICE.  §§  2030-2037 

due,  as  if  it  were  a  debt  of  liis  own,  and  uot  as  a 
Diere  guarantor  for  the  i)urcliaser;  but  be  does  not 
thereby  assume  any  additional  responsibility  for 
the  safety  of  his  remittance  of  the  proceeds. 

§  2030.  A  factor  who  receives  property  for 
sale,  under  a  general  agreement  or  usage  to  guar- 
antee the  sales  or  the  remittance  of  the  proceeds, 
cannot  relieve  himself  from  responsibility  there- 
for without  the  consent  of  his  principal. 


ARTICLE  IV. 
SHIPMASTERS. 

§  2034.  Appointment    of   master. 

§  2035.  When  must  be  on  board. 

§  2036.  Pilotage. 

I  2037.  Power   of   master    over  seamen. 

§  203S.  Power   of  master   over  passengers. 

§  2039.  Impressing    private    stores. 

§  2040.  When  may  abandon  the  ship. 

§  2041.  Duties    on    abandonment. 

§  2042.  When   master  cannot   trade   on   his   own   account. 

§  2043.  Care   and   diligence. 

§  2044.  Authority  of  master. 

§  2034.  The  master  of  a  ship  is  appointed  by 
the  owner  and  holds  during  his  pleasure. 

§  2035.  The  master  of  a  ship  is  bound  to  be 
always  on  board  when  entering  or  leaving  a  port, 
harbor,  or  river. 

§  2036.  On  entering  or  leaving  a  port,  harbor, 
or  river  the  master  of  a  ship  must  take  a  pilot  if 
one  offers  himself  and  while  the  pilot  is  on  board 
the  navigation  of  the  ship  devolves  on  him. 

Duties  of  Pilots  and  Pilot  Commissioners,  see 
Pol.  Code.  sees.  2429-2447-2491. 

§  2037.  The  master  of  a  ship  may  enforce  the 
obedience  of  the  mate  and  seamen  to  his  lawful 
commands  by  confinement  and  other  reasonable 
corporal   punishment,   not   prohibited   by   acts   of 


§§  2038-2044  SERVISE.  448 

Congress,  being  responsible  for  the  abuse  of  his 
power. 

§  2038.  The  master  of  a  ship  may  confine  any 
person  on  board,  during  a  voyage,  for  willful  diso- 
bedience to  his  lawful  commands. 

§  2039.  If,  during  a  voyage,  the  ship's  supplies 
fail,  the  master,  with  the  advice  of  the  officers, 
may  compel  persons  who  have  private  supplies  on 
board  to  surrender  them  for  the  common  want 
on  payment  of  their  value,  or  giving  security 
therefor. 

§  2040.  The  master  of  a  ship  must  not  aban- 
don it  during  the  voyage,  without  tlie  advice  of 
the  other  officers. 

§  2041.  The  master  of  a  ship,  upon  abandoning 
it,  must  carry  with  him.  so  far  as  it  is  in  his 
power,  the  money  and  the  most  valuable  of  the 
goods  on  board,  under  penalty  of  being  personally 
responsible.  If  the  articles  thus  taken  are  lost 
from  causes  beyond  his  control,  he  is  exonerated 
from  liability. 

§  2042.  The  master  of  a  ship,  who  engages  for 
a  common  profit  on  the  cargo,  must  not  trade  on 
his  own  account,  and  if  he  does,  he  must  account 
to  his  employer  for  all  profits  thus  made  by  him. 

§  2043.  The  master  of  a  ship  must  use  great 
care  and  diligence  in  the  performance  of  his  du- 
ties, and  is  responsible  for  all  damage  occasioned 
by  his  negligence,  however  slight. 

§  2044.  The  authority  and  liability  of  the 
master  of  a  ship,  as  an  agent  for  the  owners  of  the 
ship  and  cargo,  are  regulated  by  the  Title  on  Agen- 
cy. 

Agency  in  general:  See  sees.  2295  et  seq. 


449  SERVICE.  §§  2048-2050 

Bottomry,  master  may  hypothecate  upon:  See 
sees.  3019  et  seq. 

•Kespondentia,    master    may    hypothecate    upon: 
Sees.  30;38  et  seq. 

ARTICLE  V. 

MATES    AND    SEAMEN. 

§  2048.  Mate,    what. 

§  2049.  Seamen,   what. 

§  2050.  Mate  and  seamen,   how  engaged  and  discharged. 

§  2051.  Unseaworthy  vessel. 

§  2052.  Seamen   not  to  lose  wages  or  lien  by  agreement. 

§  2053.  Special   agreement  with  seamen. 

§  2054.  Wages   depend   on   freightage. 

§  2055.  When    wages     &c.,    begin. 

§  2056.  Wages,  where  voyage  is  broken  up  before  departure. 

§  2057.  Wrongful   discharge. 

§  2058.  Wages,  when  not  lost  by  wreck. 

§  2059.  Certificate. 

§  2060.  Disabled   seamen. 

§  2061.  Maintenance    of    seamen    during    sickness. 

§  2062.  Death  on  the  voyage. 

§  2063.  Theft,    &c.,    forfeits   wages. 

§  2064.  Seamen  cannot  ship  goods. 

§  2065.  Embezzlement  and  injuries.     (Repealed.) 

§  2066.  Law  governing  seamen. 

§  2048.  The  mate  of  a  ship  is  the  officer  next 
in  rank  to  the  master,  and  in  case  of  the  master's 
disability  he  must  take  his  place.  By  so  doing  he 
does  not  lose  any  of  his  rights  as  mate. 

§  2049.  All  persons  employed  in  the  navigation 
of  a  ship,  or  upon  a  voyage,  other  than  the  master 
and  mate,  are  to  be  deemed  seamen  within  the 
provisions  of  this  Code. 

§  2050.  The  mate  and  seamen  of  a  ship  are  en- 
gaged by  the  master,  and  may  be  discharged  by 
him  at  any  period  of  the  voyage,  for  willful  and 
persistent  disobedience  or  gross  disqualification, 
but  cannot  otherwise  be  discharged  before  the 
termination  of  the  voyage. 


§§  2051-5057  SERVICE.  450 

§  2051.  A  mate  or  seamau  is  not  bound  to  go 
to  Lea  in  a  sliip  tliat  is  not  seaworthy;  and  if  there 
is  reasonable  doubt  of  its  seaworthiness,  he  may 
refuse  to  proceed  until  a  proper  survej^  has  been 
had. 

Seaworthiness  defined:  See,  2682. 

§  2052.  A  seaman  cannot,  by  reason  of  any 
agreement,  be  deprived  of  his  lien  upon  the  ship, 
or  of  any  remedy  for  the  recovery  of  his  Avages 
to  which  lie  would  otherwise  have  been  entitled. 
Any  stipulation  by  which  he  consents  to  abandon 
his  right  to  wages  in  case  of  the  loss  of  the  ship, 
or  to  abandon  any  right  he  may  have  or  obtain 
in  the  nature  of  salvage,  is  void. 

Wages  in  case  of  loss  of  ship:  Sec.  2058. 

§  2053.  No  special  agreement  entered  into  by 
a  seaman  can  impair  any  of  his  rights,  or  add  to 
any  of  liis  obligations,  as  defined  by  law,  unless 
he  fully  understands  the  effect  of  the  agreement, 
and  receives  a  fair  compensation  therefor. 

§  2054.  Except  as  hereinafter  provided,  the 
wages  of  seamen  are  due  when,  and  so  far  only 
as,  freightage  is  earned,  unless  the  loss  of  freight- 
age is  owing  to  the  fault  of  the  owner  or  master. 

§  2055.  The  right  of  a  mate  or  seaman  to 
Avages  and  provisions  begins  either  from  the  time 
he  begins  worl^;,  or  from  tlie  time  specified  in  the 
agreement  for  his  beginning  work,  or  from  his 
presence  on  board.  whicheA'er  first  happens. 

§  2056.  AVhere  a  voyage  is  broken  up  before 
departure  of  the  ship,  the  seamen  must  be  paid  for 
the  time  they  have  served,  and  may  retain  for 
their  indemnity  such  advances  as  they  haA'e  re- 
ceived. 

§  2057.  When  a  mate  or  seaman  is  wrongfully 
<lischarged,  or  is  driven  to  leave  the  ship  by  the 


451  SERVICE.  §§  2058-2063 

cruelty  of  the  master  on  the  voyjii^e,  it  is  then 
ended  with  respect  to  him,  and  he  may  thereup- 
on recover  his  full  wages. 

§  2058.  In  case  of  loss  or  wreck  of  the  ship,  a 
seaman  is  entitled  to  his  wages  up  to  the  time  of 
the  loss  or  wreck,  whether  freightage  has  been 
earned  or  not.  if  he  exerts  himself  to  the  utmost 
to  save  the  ship,  cargo,  and  stores. 

§  2059.  A  certificate  from  the  master  or  chief 
surviving  otficer  of  a  ship,  to  the  effect  that  a  sea- 
man exerted  himself  to  the  utmost  to  save  the 
ship,  cargo,  and  stores,  is  presumptive  evidence  of 
the  fact. 

§  2060.  Where  a  mate  or  seaman  is  prevented 
from  rendering  service  by  illness  or  injury,  incur- 
red without  his  fault,  in  the  discharge  of  his 
duty  on  the  voyage,  or  by  being  wrongfully  dis- 
charged, or  by  a  capture  of  the  ship,  he  is  entitled 
to  wages  notwitlistanding;  but  in  case  of  a  cap- 
ture, a  ratable  deduction  for  salvage  is  to  be 
made. 

§  2061.  If  a  mate  or  seaman  becomes  sick  or 
disabled  during  the  voyage  without  his  fault,  the 
expense  of  furnishing  him  witli  suitable  medical 
advice,  medicine,  attendance,  and  other  provision 
for  his  wants,  must  be  borne  by  the  sliip  till  the 
close  of  the  voyage. 

§  2062.  If  a  mate  or  seaman  dies  during  the 
voyage,  his  personal  representatives  are  entitled  to 
his  wages  to  the  time  of  his  deatli,  if  he  would 
have  been  entitled  to  them  liad  he  lived  to  the  end 
of  the  voyage. 

§  2063.  Desertion  of  the  ship  without  cause,  or 
a  justifiable  discharge  by  the  master  during  the 
voyage,  for  misconduct,  or  a  theft  of  any  part  of 
the  cargo  or  appurtenances  of  the  ship,  or  a  willful 


§§  2064-2072  SERVICE.  452 

injury  thereto  or  to  the  ship,  forfeits  all  wages  due 
for  the  voyage  to  a  uaate  or  seaman  thus  in  fault. 

§  2064.  A  mate  or  seaman  may  not,  under  any 
pretext,  ship  goods  on  his  own  account  without 
permission  from  the  master. 

§  2065.  Repealed.  [March  30,  1874;  Amend- 
ments 1873-4,  247.    In  effect  July  1,  1874.] 

§  2066.  The  shipment  of  officers  and  seamen, 
and  their  rights  and  duties,  are  further  regulated 
by  acts  of  Congress. 


ARTICLE  VI. 

SHIP'S  MANAGERS. 

§  2070.     Manager,   what. 

§  2071.    Duties   of   manager. 

§  2072.     Compensation. 

§  2070.  The  general  agent  for  the  owners,  in 
respect  to  the  care  of  a  ship  and  freight,  is  called 
the  manager.  If  he  is  a  part  owner,  he  is  also 
called  the  managing  owner. 

§  2071.  Unless  otherwise  directed,  it  is  the 
duty  of  the  manager  of  a  ship  to  provide  for  the 
complete  seaworthiness  of  a  ship;  to  take  care  of 
it  in  port;  to  see  that  it  is  provided  with  necessary 
papers,  with  a  proper  master,  mate,  and  crew, 
and  supplies  of  provisions  and  stores. 

§  2072.  A  managing  owner  is  presumed  to  have 
no  right  to  compensation  for  his  own  services. 


453  SERVICE.  §§  2078-2079 

CHAPTER  III. 

SERVICE    WITHOUT    EMPLOYMENT. 

§  2078.    Voluntary  interference  with  property. 
§  2079.    Salvage. 

§  2078.  One  who  officiously,  and  without  the 
consent  of  the  real  or  apparent  owner  of  a  thing, 
takes  it  into  his  possession  for  the  purpose  of  ren- 
dering a  service  about  it,  must  complete  such  ser- 
vice, and  use  ordinary  care,  diligence,  and  reason- 
able skill  about  the  same.  He  is  not  entitled  to 
any  compensation  for  his  service  or  expenses,  ex- 
cept that  he  may  deduct  actual  and  necessary  ex- 
penses incurred  by  him  about  such  service  from 
any  profits  which  his  service  has  caused  the  thing 
to  acquire  for  its  owner,  and  must  account  to 
the  owner  for  the  residue. 

Employment  without  reward:  See  sees.  1975  et 
seq. 

Gratuitous  carriers:  Sec.  2089. 

§  2079.  Any  person,  other  than  the  master, 
mate,  or  a  seaman  thereof,  who  rescues  a  ship,  her 
appurtenances,  or  cargo,  from  danger,  is  entitled 
to  a  reasonable  compensation  therefor,  to  be  paid 
out  of  the  property  saved.  He  has  a  lien  for  such 
claim,  which  is  regulated  by  the  Title  on  Liens; 
but  no  claim  for  salvage,  as  such,  can  accrue 
against  any  vessel,  or  her  freight,  or  cargo,  in 
favor  of  the  owners,  officers,  or  crew  of  another 
vessel  belonging  to  the  same  owners;  but  the  ac- 
tual cost  at  the  time  of  the  services  rendered  by 
one  such  vessel  to  another,  when  in  distress,  are 
payable  through  a  general  average  contribution 
on  the  property  saved.  [Amendment,  approved 
March  30.  1874:  Amendments  187.3-4,  247.  In  ef- 
fect July  1,  1874.] 


§§  2085-2087  CARRIAGE.  454 

TITLE  VII. 

CARRIAGE. 

Chapter  I.  Carria.iie  iu  General,  §§  2085-2090. 

II.  Carriage  of  Persons,  §§  2100-2104. 

III.  Carriage  of  Property,  §§  2110-2155. 

IV.  Carriage  of  Messages,  §  2161. 

V.  Common  Carriers,  §§  2168-2209. 

CHAPTER  I. 

CARRIAGE    IN    GENERAL. 

§  2085.  Contract   of  carriage. 

§  2086.  Different  kinds  of  carriers. 

§  2087.  Marine  and  inland  carriers,  what. 

§  2088.  Carriers   by   sea. 

§  2089.  Obligations   of   gratuitous    carriers. 

§  2090.  Obligations    of    gratuitous    carrier    who    has    begun 
to  carry. 

§  2085.  Tlie  contract  of  carriage  is  a  contract 
for  the  conveyance  of  property,  persons,  or  mes- 
sages, from  one  place  to  another. 

Owner  is  liable  for  acts  of  driver:  Pol.  Code.  sec. 
2936. 

Common  carriers  defined:   Sec.  2108. 

Carriage  of  property:  Sees.  2110  et  seq. 

Carriage  of  persons:  Sees.  2096  et  seq. 

Carriage  of  messages:  Sees.  2161,  2162,  and  2207 
et  seq. 

§  3086.    Carriage  is  either: 

1.  Inland:  or, 

2.  Marine. 

§  2087.  Carriers  upon  the  ocean  and  upon  arms 
of  the  sea  are  marine  carriers.  All  others  are  in- 
land carriers. 

Inland  carriers  of  property,  rights  and  duties  of: 
See  sees.  2194  et  seq. 


455  CARRIAGE.  §§  2088-2090 

Marine  carriers,  riglits  and  duties  of:  See  sees. 
2148,  2197  et  seq. 

§  2088.  Kights  and  duties  peculiar  to  carriers 
by  sea  are  delined  by  acts  of  Congress. 

'•See  acts  of  Congress  relative  to  carrying  pas- 
sengers: Acts  of  1819,  c.  46:  1838,  c.  191;  1843,  c. 
94;  1847,  c.  16;  1848,  c.  41;  1851,  c.  43;  1870-1,  c. 
100":  References  by  code  commissioners. 

See  also  sees.  2197,  2198. 

Rights  and  duties  of  carriers  generally:  Sees. 
2180  et  seq.,  2194  et  seq. 

General  average:  Sees.  2148  et  seq. 

S  2089.  Carriers  without  reward  are  subject 
To  the  same  rules  as  employees  without  reward, 
except  so  far  as  is  otherwise  provided  bv  this  ti- 
tle. 

Employees  without  reward:  See  sees.  1975  et 
seq. 

Service  without  employment:  See  sees.  2078  et 
seq. 

§  2070.  A  carrier  without  reward,  who  has 
begun  to  perform  his  undertaliing,  must  complete 
it  in  like  manner  as  if  he  had  received  a  reward, 
unless  he  restores  the  person  or  thing  carried  to  as 
favorable  a  position  as  before  he  commenced  the 
carriage. 

Compare  with  sees.  1975,  1976. 


§§  2096-2102  CARRIAGE.  456 

CHAPTER  II. 

CARRIAGE  OF  PERSONS. 

Article  I.     Gratuitous   Carriage,    §  2096. 

11.    Carriage  for  Reward,   §§  2100-2104. 

ARTICLE  I. 

GRATUITOUS  CARRIAGE  OF  PERSONS. 
§  2093.    Degree  of  care  required. 

§  2096.  A  carrier  of  persons  without  reward 
must  use  ordinary  care  and  diligence  for  their  safe 
carriage. 

Duty  of  gratuitous  employee,  generally:  See  sees. 
1975,  1976. 

Carriers  of  persons,  generally:  See  sees.  2180  et 
seq. 

ARTICLE  II. 

CARRIAGE  FOR  REWARD. 

§  2100.  General  duties  of  carrier. 

§  2101.  Vehicles. 

§  2102.  Not  to  overload  his  vehicle. 

§  2103.  Treatment  of  passengers. 

§  2104.  Rate  of  speed  and  delays. 

§  2100.  A  carrier  of  persons  for  reward  must 
use  the  utmost  care  and  diligence  for  their  safe 
carriage,  must  provide  everything  necessary  for 
that  purpose,  and  must  exercise  to  that  end  a 
reasonable  degree  of  skill. 

§  2101.  A  carrier  of  persons  for  reward  is 
bound  to  provide  vehicles  safe  and  fit  for  the  pur- 
poses to  which  they  are  put,  and  is  not  excused 
for  default  in  this  respect  by  any  degree  of  care. 

§  2102.  A  carrier  of  persons  for  reward  must 
not  overcrowd  or  overload  his  vehicle. 

Railroad  corporations  to  furnish  accommoda- 
tions: Sec.  483. 


457  CARRIAGE.  §§  2103-2UO 

§  2103.  A  carrier  of  persons  for  reward  must 
give  to  passengers  all  such  accommodations  as 
are  usual  and  reasonable,  and  must  treat  them 
with  civility,  and  give  them  a  reasonable  degree 
of  attention. 

§  2104.  A  carrier  of  persons  for  reward  must 
travel  at  a  reasonable  rate  of  speed,  and  without 
any  unreasonable  delay,  or  deviation  from  his 
proper  route. 

CHAPTER  III. 

CARRIAGE  OF  PROPERTY. 

Article  I.  General  Definitions,   §  2110. 

II.  Obligations   of  the  Carrier,    §§   2114-2122. 

III.  Bill   of   Lading,   §§  2126-2132. 

IV.  Freightage,   §§  2136-2144. 

V.     General  Average,  §§  2148-2155. 

ARTICLE  I. 

GENERAL   DEFINITIONS. 
§  2110.    Freight,  consignor,  &c.  what. 

§  2110.  Property  carried  is  called  freight;  the 
reward,  if  any.  to  be  paid  for  its  carriage  is  called 
freightage;  the  person  who  delivers  the  freight  ta 
the  carrier  is  called  the  consignor;  and  the  person 
to  whom  it  is  to  be  delivered  is  called  the  con- 
signee. 

Freightage,  when  to  be  paid:  See  sees.  2136  et 
seq. 

Bill  of  lading.— For  definition  of  bill  of  lading, 
see  sec.  2126. 

Civ.    Code.— 39. 


§§  2114-2117  CARRIAGE.  /  458 

ARTICLE  II. 

OBLIGATIONS    OF  THE   CARRIER. 

§  2114.  Care  and  diligence  required  of  carriers. 

§  2115.  Carrier  to  obey  directions. 

§  2116.  Conflict    of    orders. 

§  2117.  Stowage,    deviation,    &c. 

§  2118.  Delivery  of  freight. 

§  2119.  Place   of   delivery. 

§  2120.  Obligations    of   carrier   when    freight    is    not   deliv- 
ered to  consignee. 

§  2121.  How  carrier  may  terminate  his  liability. 

§  2122.  When  consignee  cannot  be  found.     [Repealed.] 

§  2114.  A  carrier  of  property  for  reward  must 
use  at  least  ordinary  care  and  diligence  in  the 
performance  of  all  his  duties.  A  carrier  without 
reward  must  use  at  least  slight  care  and  dili- 
gouce. 

§  2115,  A  carrier  must  comply  with  the  direc- 
tions of  the  consignor  or  consignee  to  the  same 
extent  that  an  employee  is  bound  to  comply  with 
those  of  his  employer. 

Employee's  duty  to  obey  employer:  Sec.  1981. 

§  2116.  When  the  directions  of  a  consignor  and 
consignee  are  conflicting,  the  carrier  must  com- 
ply with  those  of  tlie  consignor  in  respect  to  all 
matters  except  the  delivery  of  the  freight,  as  to 
which  he  must  comply  with  the  directions  of  the 
consignee,  unless  the  consignor  has  specially  for- 
bidden the  carrier  to  receive  orders  from  the  con- 
signee inconsistent  with  his  own. 

§  2117,  A  marine  carrier  must  not  stow  freight 
upon  deck  during  the  voyage,  except  where  it  is 
usual  to  do  so,  nor  make  any  improper  deviation 
from  or  delay  in  the  voyage,  nor  do  any  other 
unnecessary  act  which  would  avoid  an  insurance 
in  the  usual  form  upon  the  freight. 


459  CARRIAGE.  §§  2118-2121 

§  2118,  A  carrier  of  property  must  deliver  it 
to  tlie  consignee,  at  tlie  place  to  which  it  is  ad- 
dressed, in  the  manner  usual  at  that  place. 

§  2119.  If  there  is  no  usage  to  the  contrary  at 
the  place  of  delivery,  freight  must  be  delivered 
as  follows: 

1.  If  carried  upon  a  railway  owned  or  managed 
by  the  carrier,  it  may  be  delivered  at  the  station 
nearest  to  the  place  to  which  it  is  addressed; 

2.  If  carried  by  sea  from  a  foreign  country,  it 
maj^  be  delivered  at  the  wharf  M'here  the  ship 
moors,  within  a  reasonable  distance  from  the  place 

of  address;  or,  if  there  is  no  wharf,  on  board  a 
lighter  alongside  the  ship;  or, 

3.  In  other  cases,  it  must  be  delivered  to  the 
consignee  or  his  agent,  personally,  if  either  can, 
with  reasonable  diligence,  be  found. 

Delivery  to  connecting  carrier:  See  sec.  2201. 

§  2120.  If.  for  any  reason,  a  carrier  does  not 
deliver  freight  to  the  consignee  or  his  agent,  per- 
sonally, he  must  give  notice  to  the  consignee  of 
its  arrival,  and  keep  the  same  in  safety  upon  his 
responsibility  as  a  warehouseman,  until  the  con- 
signee has  had  a  reasonable  time  to  remove  it.  If 
the  place  of  residence  or  business  of  the  consignee 
be  unlvnowu  to  the  carrier,  he  may  give  the  no- 
tice by  letter  dropped  in  the  nearest  postoffice. 
[Amendment,  approved  March  30.  1874;  Amend- 
ments 1873-4,  p.  247.     In  effect  July  1,  1874.] 

§  2121.  If  a  consignee  does  not  accept  and  re- 
move freight  within  a  reasonable  time  after  the 
carrier  has  fulfilled  his  obligation  to  deliver,  or 
duly  offered  to  fulfill  the  same,  the  carrier  may  ex- 
onerate himself  from  further  liability  by  placing 
the  freight  in  a  suitable  warehouse,  on  storage,  on 
account  of  the  consignee,  and  giving  notice  there- 
of to  him.    [Amendment,  approved  March  30,  1874; 


5§  2122-2128  CARRIAGE.  460 

Amendments   1873-4,   p.   248.      In    effect    July   1, 
1874.] 

§  2122.     [Repealed,    March   30,    1874;    Amend- 
ments 1873-4,  248.     In  effect  July  1,  1874.] 


ARTICLE  III. 
BILL    OF    LADING. 

§  2126.     Bill   of  lading,   what.. 

§  2127.    Bill   of  lading  negotiable. 

§  2128.     Same. 

§  2129.     Effect  of  bill  of  lading  on  rights,    &c.,   of  carrier. 

§  2130.     Bills  of  lading  to  be  given  to  consignor. 

§  2131.  Carrier  exonerated  by  delivery  according  to  bill  of 
lading. 

I  2132.  Carrier  may  demand  surrender  of  bill  of  lading  be- 
fore delivery. 

§  2126.  A  bill  of  lading  is  an  instrument  in 
writing,  signed  by  a  carrier  or  his  agent,  describ- 
ing the  freight  so  as  to  identify  it,  stating  the 
name  of  the  consignor,  the  terms  of  the  contract 
for  carriage,  and  agreeing  or  directing  that  the 
freight  be  delivered  to  the  order  or  assigns  of  a 
specified  person  at  a  specified  place. 

Issuing  fictitious  bill  of  lading:  Penal  Code,  sec. 
577. 

§  2127.  All  the  title  to  the  freight  which  the 
first  holder  of  a  bill  of  lading  had  when  he  re- 
ceived it,  passes  to  every  subsequent  indorsee 
thereof  in  good  faith  and  for  value,  in  the  ordin- 
ary course  of  business,  with  Wke  effect  and  in  like 
manner  as  in  the  case  of  a  bill  of  exchange. 

Delivery  without  canceling  receipt  a  penal  of- 
fense: Penal  Code,  sec.  582. 

§  2128.  When  a  bill  of  lading  is  made  to  "bear- 
er," or  in  equivalent  terms,  a  simple  transfer 
thereof,  by  delivery  conveys  the  same  title  as  an 
indorsement. 


461  CARRIAGE.  §§  2129-2136 

§  2129.  A  bill  of  lading  does  not  alter  the 
rights  or  obligations  of  the  carrier,  as  defined  in 
this  chapter,  unless  it  is  plainly  inconsistent  there- 
with. 

§  2130.  A  carrier  must  subscribe  and  deliver  to 
the  consignor,  on  demand,  any  reasonable  number 
of  bills  of  lading,  of  the  same  tenor,  expressing 
truly  the  original  contract  for  carriage;  and  if  he 
refuses  to  do  so,  the  consignor  may  take  the 
freight  from  him,  and  recover  from  him,  besides, 
all  damage  thereby  occasioned. 

Duplicate  receipts  must  be  marked  "duplicate": 
Penal  Code  sec.  580. 

§  2131.  A  carrier  is  exonerated  from  liability 
for  freight  by  delivery  thereof,  in  good  faith,  to 
any  holder  of  a  bill  of  lading  therefor,  properly  in- 
dorsed, or  made  in  favor  of  the  bearer. 

See  sec.  2128. 

§  2132.  When  a  carrier  has  given  a  bill  of  lad- 
ing, or  other  instrument  substantially  equivalent 
thereto,  he  may  require  its  surrender,  or  a  rea- 
sonable indemnity  against  claims  thereon,  before 
delivering  the  freight. 

ARTICLE  IV. 
FREIGHTAGE. 

§  2136.  When  freightage  is  to  be  paid. 

§  2137.  Consignor,   when   liable  for  freightage. 

§  2138.  Consignee,    when    liable. 

§  2139.  Natural  increase  of  freight. 

§  2140.  Apportionment  by  contract. 

§  2141.  Same. 

§  2142.  Apportionment  according  to  distance. 

§  2143.  Freight    carried    further    than    agreed,    &c. 

§  2144.  Carrier's  lien  for  freightage. 

§  2136.  A  carrier  may  require  his  freightage 
to  be  paid  upon  his  receiving  the  freight:  but  if  he 


§§  2137-2142  CARRIAGE.  462 

does  not  demand  it  then,   be  cannot  until   he  is 
ready  to  deliver  the  freight  to  the  consignee. 

Freightage  defined:  Sec.  2110. 

Freight  defined:  Sec.  2110. 

§  2137.  The  consignor  of  freight  is  presumed 
to  be  liable  for  the  freightage,  but  if  the  contract 
between  him  and  the  carrier  provides  that  the 
consignee  shall  pay  it,  and  the  carrier  allows  the 
consignee  to  take  the  freight,  he  cannot  after- 
wards recover  the  freightage  from  the  consignor. 

§  2138.  The  consignee  of  freight  is  liable  for 
the  freightage,  if  he  accepts  the  freight  with  no- 
tice of  the  intention  of  the  consignor  that  he 
should  pay  it. 

§  2139.  No  freightage  can  be  charged  upon  the 
natural  increase  of  freight. 

§  2140.  If  freightage  is  apportioned  by  a  bill  of 
lading  or  other  contract  made  between  a  consign- 
or and  carrier,  the  carrier  is  entitled  to  payment, 
according  to  the  apportionment,  for  so  much  as  he 
delivers. 

§  2141.  If  a  part  of  the  freight  is  accepted  by 
a  consignee,  without  a  specific  objection  that  the 
rest  is  not  delivered,  the  freightage  must  be  appor- 
tioned and  paid  as  to  that  part,  though  not  appor- 
tioned in  the  original  contract. 

§  2142.  If  a  consignee  voluntarily  receives 
freight  at  a  place  short  of  the  one  appointed  for 
delivery,  the  carrier  is  entitled  to  a  just  propor- 
tion of  the  freightage,  according  to  distance.  If 
the  carrier,  being  ready  and  willing,  offers  to  com- 
plete the  transit,  he  is  entitled  to  the  full  freight- 
age. If  he  does  not  thus  oft'er  completion,  and  the 
consignee  receives  the  freight  only  from  necessity, 
the  carrier  is  not  entitled  to  any  freightage. 


463  CARRIAGE.  §§  2143-21o0 

§  2143.  If  freight  is  carried  further,  or  more 
expeditiously,  than  was  agreed  upon  by  the  par- 
ties, the  carrier  is  not  entitled  to  additional  com- 
pensation, and  cannot  refuse  to  deliver  it,  on  the 
demand  of  the  consignee,  at  the  place  and  time  of 
its  arrival. 

§  2144.    A  carrier    has  a    lien  for    freightage, 
which  is  regulated  by  the  Title  on  Liens. 
Liens:  See  sees.  2872,  post,  et  seq. 
Lien  on  passenger's  luggage:  Sec.  2191. 


ARTICLE  y. 

GENERAL   AVERAGE. 

§  2148.  Jettison  and  general  average,   what. 

§  2149.  Order  of  jettison. 

§  2150.  By  whom  made. 

§  2151.  Loss,   how  borne. 

§  2152.  General  average  loss,   how  adjusted. 

§  2153.  Values,   how  ascertained. 

§  2154.  Things  stowed  on  deck. 

§  2155.  Application  of  the  foregoing  rules. 

§  2148.  A  carrier  by  water  may,  when  in  case 
of  extreme  peril  it  is  necessary  for  the  safety  of 
the  ship  or  cargo,  throw  overboard,  or  otherwise 
sacrifice,  any  or  all  the  cargo  or  appurtenances  of 
the  ship.  Throwing  property  overboard  for  such 
purpose  is  called  jettison,  and  the  loss  incurred 
thereby  is  called  a  general  average  loss. 

§  2149.  A  jettison  must  begin  with  the  most 
bulky  and  least  valuable  articles,  so  far  as  pos- 
sible. 

§  2150.  A  jettison  can  be  made  only  by  author- 
ity of  the  master  of  the  ship,  except  in  case  of  his 
disability,  or  of  an  overruling  necessity,  when  it 
may  be  made  by  any  other  person. 


§§  2151-2155  CARRIAGE.  464 

§  2151.  The  loss  incurred  by  a  jettison,  wtien 
lawfully  made,  must  be  borne  in  due  proportion 
by  all  that  part  of  the  ship,  appurtenances, 
freightage,  and  cargo  for  the  benefit  of  which  the 
sacrifice  is  made,  as  Avell  as  by  the  owner  of  the 
thing  sacrificed. 

§  2152.  The  proportions  in  which  a  general  av- 
erage loss  is  to  be  borne  must  be  ascertained  by 
an  adjustment,  in  which  the  owner  of  each  sepa- 
rate interest  is  to  be  charged  with  such  proportion 
of  the  value  of  the  thing  lost  as  the  value  of  his 
part  of  the  property  atfected  bears  to  the  value  of 
the  whole.  But  an  adjustment  made  at  the  end 
of  the  voyage,  if  valid  there,  is  valid  everywhere. 

§  2153.  In  estimating  values  for  the  purpose  of 
a  general  average,  the  ship  and  appurtenances 
must  be  valued  as  at  the  end  of  the  voyage,  the 
freightage  at  one-half  the  amount  due  on  delivery, 
and  the  cargo  as  at  the  time  and  place  of  its  dis- 
charge; adding,  in  each  case,  the  amount  made 
good  by  contribution. 

§  2154.  The  owner  of  things  stowed  on  declt, 
in  case  of  their  jettison,  is  entitled  to  the  benefit  of 
a  general  average  contribution  only  in  case  it  is 
usual  to  stow  such  things  on  deck  upon  such  a 
voyage. 

§  2155.  The  rules  herein  stated  concerning  jet- 
tison are  equally  applicable  to  every  other  vol- 
untary sacrifice  of  property  on  a  ship,  or  expense 
necessarily  incurred,  for  the  preservation  of  the 
ship  and  cargo  from  extraordinary  perils. 


465  CARRIAGE.  §§  2161,  2162 

CHAPTER  IV. 

CARRIAGE    OF   MESSAGES. 

§  2161.     Obligations  of  carrier  of  messages. 
§  2162.    Degree  of  care  and  diligence  required. 

§  2161.  A  carrier  of  messages  for  reward,  other 
than  by  telegraph,  must  deliver  them  at  the  place 
to  which  they  are  addressed,  or  to  the  person  for 
whom  they  are  intended.  Such  carrier,  by  tele- 
graph, must  deliver  them  at  such  place  and  to 
such  person,  provided  the  place  of  address,  or  the 
person  for  whom  they  are  intended,  is  within  a 
distance  of  two  miles  from  the  main  office  of  the 
carrier  in  the  city  or  town  to  which  the  messages 
are  transmitted,  and  the  carrier  is  not  required, 
in  making  the  delivery,  to  pay  on  his  route  toll  or 
ferriage;  but  for  any  distance  beyond  one  mile 
from  such  office,  compensation  may  be  charged 
for  a  messenger  employed  by  the  carrier.  [Amend- 
ment, approved  March  30,  1874:  Amendments 
1873-4,  p.  248.    In  effect  July  1.  1874.] 

Xeglect  or  postponement  in  delivery:  See  Penal 
Code,  sec.  6.38. 

Order  of  transmitting  messages:  Sec.  2208. 

Refusal  to  deliver  message,  penalty:  Sec.  2209. 

Carrier  of  telegraphic  messages:  See  post:  Sees. 
2207  et  seq. 

§  2163.  A  carrier  of  messages  for  reward  must 
use  great  care  and  diligence  in  the  transmission 
and  delivery  of  messages.  [Amendment,  approved 
March  30,  1874:  Amendments  1873-4.  p.  240.  In 
effect  July  1,  1874.] 


§§  2168,  2169  CARRIAGE.  466 

CHAPTER  V. 

COMMON    CARRIERS. 

Article  I.  Common  Carriers  in  General,  §§  2168-2177. 

II.  Common   Carriers   of   Persons,    §§   2180-2191. 

III.  Common  Carriers  of  Property.  §§  2194-2204. 

IV.  Common   Carriers  of  Messages,    §§   2207-2209. 

ARTICLE  I. 

COMMON  CARRIERS  IN  GENERAL. 

5  2168.  Common    carrier,    what. 

§  2169.  Obligation  to  accept  freight. 

§  2170.  Obligation   not   to    give    preference. 

§  2171.  "What  preferences  he  must  give. 

§  2172.  Starting. 

§  2173.  Compensation. 

§  2174.  Obligations  of  carrier  altered  only  by  agreement. 

§  2175.  Certain    agreements    void. 

§  2173.  Effect  of  written  contract. 

§  2177.  When   not   liable   for   loss. 

§  2168.  Every  one  "vvho  offers  to  the  public  to 
carry  persons,  property,  or  messages,  excepting 
only  telegraphic  messages,  is  a  common  carrier  of 
whatever  he  thus  offers  to  carry.  [In  effect  July 
1,  1874.] 

Carriage  in  general:  See  sees.  2085  et  seq. 

Inland  and  marine  carriers  defined:  Sees.  2087, 
2088. 

With  regard  to  the  regulation  of  fares  and 
freightage  on  railroads,  see  ante,  sec.  484. 

Rights  and  liabilities  of  carriers:  See  post,  under 
"Carriers  of  Persons  and  Carriers  of  Property," 
sees.  2180  et  seq.  and  2194;  and  as  to  rights  and 
duties  of  carriers  by  sea,  see  sec.  2088,  ante. 

§  2169.  A  common  carrier  must,  if  able  to  do 
so,  accept  and  carry  whatever  is  offered  to  him, 
at  a  reasonable  time  and  place,  of  a  kind  that  he 
undertakes  or  is  accustomed  to  carry. 


467  CARRIAGE.  §§  2170-2172 

Refusal  by  railroad  to  carry   passengers:    Sec. 
482.  ante. 
Want  of  room :  See  post,  sec.  2185. 

§  2170.  A  common  carrier  must  not  give  prefer- 
ence, in  time,  price,  or  otherwise,  to  one  person 
over  another.  Every  common  carrier  of  passen- 
gers by  railroad,  or  by  vessel  plying  upon  waters 
lying  wholly  within  this  State,  shall  establish  a 
schedule  time  for  the  starting  of  trains  or  vessels 
from  their  respective  stations  or  wharves,  of 
which  public  notice  shall  be  given,  and  shall, 
weather  permitting,  except  in  case  of  accident  or 
detention  caused  by  connecting  lines,  start  their 
said  trains  or  vessels  at  or  within  ten  minutes  af- 
ter the  schedule  time  so  established  and  notice 
given,  under  a  penalty  of  two  hundred  and  fifty- 
dollars  for  each  neglect  so  to  do,  to  be  recovered 
by  action  before  any  court  of  competent  jurisdic- 
tion, upon  complaint  filed  by  the  district  attor- 
ney of  the  county  in  the  name  of  the  people,  and 
paid  into  the  common  school  fund  of  the  said 
county.  [Amendment,  approved  April  2,  1880; 
Amendments  1880,  p.  1.    In  effect  April  2.  1880.] 

Time-table.— For  railroads,  see  ante,  sec.  481, 
and  generally,  infra,  sec.  2172. 

§  2171.  A  common  carrier  must  always  give  a 
preference  in  time,  and  may  give  a  preference  in 
price,  to  the  United  States  and  to  this  State. 

§  2172.  A  common  carrier  must  start  at  such 
time  and  place  as  he  announces  to  the  public,  un- 
less detained  by  accident  or  the  elements,  or  in 
order  to  connect  with  carriers  on  other  lines  of 
travel.  [Amendment,  approved  March  30.  1874; 
Amendments  1873-4,  p.  249.  In  effect  .luly  1. 
1874.] 

See  sec.  2170,  ante,  and  sec.  2196.  post. 


§§  2173-2176  CARRIAGE.  468 

§  2173.  A  common  carrier  is  entitled  to  a  rea- 
sonable compensation  and  no  more,  which  he  may 
require  to  be  paid  in  advance.  If  payment  thereof 
is  refused,  he  may  refuse  to  carry. 

Lien  for  freight:  See  sec.  2144. 

Lien  on  luggage  of  passenger:  Sec.  2191. 

§  2174.  The  obligations  of  a  common  carrier 
cannot  be  limited  by  general  notice  on  his  part, 
but  may  be  limited  by  special  contract.  [Amend- 
ment, approved  March  30,  1874;  Amendments 
1873-4,  p.  249.    In  effect  July  1,  1874.] 

Compare  with  sec.  2176,  infra,  ajid  sec.  2201, 
post. 

Limiting  liability  by  special  contract:  See  sec. 
2175. 

§  2175.  A  common  carrier  cannot  be  exonerat- 
ed, by  any  agreement  made  in  anticipation  there- 
of, from  liability  for  the  gross  negligence,  fraud, 
or  willful  wrong  of  himself  or  his  servants. 

§  2176.  A  passenger,  consignor,  or  consignee, 
by  accepting  a  ticlj;et,  bill  of  lading,  or  written 
contract  for  carriage,  with  a  linowledge  of  its 
terms,  assents  to  the  rate  of  hire,  the  time,  place, 
and  manner  of  delivery  therein  stated;  and  also  to 
the  limitation  stated  therein  upon  the  amount  of 
the  carrier's  liability  in  case  property  carried  in 
packages,  trunks,  or  boxes,  is  lost  or  injured,  when 
the  value  of  such  property  is  not  named;  and  also 
to  the  limitation  stated  therein  to  the  carrier's  lia- 
bility for  loss  or  injury  to  live  animals  carried. 
But  his  assent  to  any  other  modification  of  the 
carrier's  obligations  contained  in  such  instrument 
can  be  manifested  only  by  his  signature  to  the 
same.  [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  p.  249.  In  effect  July  1, 
1874.] 


469  CARRIAGE.  §§  2177-2181 

§  2177.  A  common  carrier  is  not  responsible  for 
loss  or  miscarriage  of  a  letter,  or  pacl^age  having 
the  form  of  a  letter,  containing  money  or  notes, 
bills  of  exchange,  or  other  papers  of  value,  unless 
he  be  informed  at  the  time  of  its  receipt  of  the 
value  of  its  contents,  [New  section,  approved 
March  30,  1874;  Amendments  1873-4,  p.  250.  In  ef- 
fect July  1,  1874.] 

Messages,  carriage  of:  See  sec.  2161,  ante. 


ARTICLE  II. 

COMMON  CARRIERS  OF  PERSONS. 

§  2180.  Obligation  to  carry  luggage. 

§  2181.  Luggage     what. 

§  2182.  Liability   for   luggage. 

§  2183.  Luggage,  how  carried  and  delivered. 

§  2184.  Obligation   to   provide   vehicles. 

§  2185.  Seats  for  passengers. 

§  2186.  Regulations    for    conduct    of    business. 

§  2187.  Pare,    when    payable. 

§  2188.  Ejection  of  passengers. 

§  2189.  Passenger  who  has   not  paid  fare. 

§  2190.  Fare   not   payable   after  ejection. 

§  2191.  Carrier's   lien. 

§  2180.  A  common  carrier  of  persons,  unless 
liis  vehicle  is  fitted  for  the  reception  of  persons  ex- 
clusively, must  receive  and  carry  a  reasonable 
amount  of  luggage  for  each  passenger  without 
charge,  except  for  an  excess  of  weight  over  one 
hundred  pounds  to  a  passenger:  provided,  that  if 
such  carrier  be  a  proprietor  of  a  stage  line,  he  may 
not  receive  and  carry  for  each  passenger  by  such 
stage  line,  without  charge,  more  than  sixty  pounds 
of  luggage.  [Amendment  approved  March  9,  1878. 
amendments  1877-8,  p.  87.     In  effect  May  8,  1878.] 

2181.  Luggage  may  consist  of  whatever  the 
passenger  takes  with  him  for  his  personal  use 
and  convenience  according  to  the  habits  or  wants 

Civ.    Code.— 40. 


§§  2182-2185  CARRIAGE.  470 

of  tlie  particular  class  to  which  he  belongs,  either 
with  reference  to  the  immediate  necessities,  or  to 
the  ultimate  purpose  of  the  journey.  No  crate, 
cover,  or  other  protection  shall  be  required  for 
any  bicycle  carried  as  luggage,  but  no  passenger 
shall  be  entitled  to  carry  as  luggage  more  than 
one  bicycle.  [Amendment,  approved  February  9, 
1897.    Stats.  1897,  ch.  IV.] 

§  2182.  The  liability  of  a  carrier  for  luggage  re- 
ceived by  him  with  a  passenger  is  the  same  as 
that  of  a  common  carrier  of  property. 

See  sec.  2194,  post. 

Lien  on  baggage  for  fare:  See  sees.  2191,  3051, 
post. 

§  2183.  A  common  carrier  must  deliver  every 
passenger's  luggage,  whether  within  the  pre- 
scribed weight  or  not,  immediately  upon  the  ar- 
rival of  the  passenger  at  his  destination;  and,  un- 
less the  vehicle  would  be  overcrowded  or  over- 
loaded thereby,  must  carry  it  on  the  same  vehicle 
by  which  he  carries  the  passenger  to  whom  it  be- 
longed, except  that  where  luggage  is  transported 
by  rail,  it  must  be  checked  and  carried  in  a  regular 
liaggage  car;  and  whenever  passengers  neglect  or 
refuse  to  have  their  luggage  so  checked  and  trans- 
ported, it  is  carried  at  their  risk.  [Amendment, 
approved  ]March  30.  1874:  Amendments  1873-4, 
p.  250.    In  effect  July  1,  1874.] 

Duty  to  furnish  check:    See  sec.  479.  ante. 

^  2184.  A  common  carrier  of  persons  must  pro- 
vide a  suftieient  number  of  vehicles  to  accommo- 
date all  the  passengers  who  can  be  reasonably  ex- 
pected to  require  carriage  at  any  one  time. 

See  sec.  2185,  post. 

§  2185.  A  common  carrier  of  persons  must  pro- 
vide every  passenger  with  a  seat.    He  must  not 


471  CARRIAGE.  §§  2186-2191 

overload    liis    vehicle    by  receiving    and    carrying- 
more  passengers  than  its  rated  capacity  allows. 

Compare  with  sec.  483,  ante. 

Duty  to  carry  all  who  apply:  See  21G9. 

§  2186.  A  common  carrier  of  persons  may 
make  rules  for  the  conduct  of  his  business,  and 
may  require  passengers  to  conform  to  them,  if 
they  are  lawful,  public,  uniform  in  their  applica- 
tion, and  reasonable. 

Rules  and  regulations:  See  ante,  sees.  465,  484, 
subs.  10,  11. 

S  2187.  A  common  carrier  may  demand  the 
fare  of  passengers,  either  at  starting  or  at  any 
subsequent  time. 

§  2188.  A  passenger  who  refuses  to  pay  his 
fare  or  to  conform  to  any  lawful  regulation  of  the 
carrier,  may  be  ejected  from  the  vehicle  by  the 
carrier.  But  this  must  be  done  with  as  little  vio- 
lence as  possible,  and  at  any  usual  stopping  place 
or  near  some  dwelling-house. 

See  ante,  see.  487, 

Ejecting  passenger  for  not  paying  fare:  Sec. 
487. 

§  2189.  A  passenger  upon  a  railroad  train  who 
has  not  paid  his  fare  before  entering  the  train, 
if  he  has  been  afforded  an  opportunity  to  do  so, 
must,  upon  demand,  pay  ten  per  cent  in  addition 
to  the  regular  rate. 

Ejecting  passenger  for  nonpayment  of  fare:  Sec. 
487. 

§  2190.  After  having  ejected  a  passenger,  a  car- 
rier has  no  right  to  require  the  payment  of  any 
part  of  his  fare. 

§  2191.  A  common  carrier  has  a  lien  upon  the 
luggage  of  a  passenger  for  the  payment  of  such 


§  2194  CARRIAGE.  472 

fare  as  lie  is  entitled  to  from  liim.  This  lieu  is 
regulated  by  the  Title  on  Liens. 

Penalty  for  overcharges:   Penal  Code,  sec.  525. 

See  general  principle  stated  in  regard  to  lien  for 
work  and  labor  performed  about  personalty,  post, 
sec.  3051. 

Lien  for  freight:  Sec.  2144. 

ARTICLE    III. 

COMMON    CARRIERS    OF    PROPERTY. 

§  2194.  Liability  of  inland  carriers  for  loss. 

§  2195.  When  exemptions  do  not  apply. 

§  2196.  Liability  for   delay. 

§  2197.  Liability  of  marine  carriers. 

§  2198.  Same. 

§  2199.  Perils  of  sea,   what. 

§  2200.  Consignor  of  valuables  to  declare  their  nature. 

§  2201.  Delivery  of  freight  beyond  usual  route. 

§  2202.  Proof  to  be  given  in  case  of  loss. 

§  2203.  Carrier's    services,     other    than    carriage    and   de- 
livery. 

§  2204.  Sale  of  perishable  property  for  freight. 

§  2194.  Unless  the  consignor  accompanies  the 
the  freight  and  retains  exclusive  control  thereof, 
an  inland  common  carrier  of  property  is  liable, 
from  the  time  that  he  accepts  until  he  relieves 
himself  from  liability  pursuant  to  sections  2118  to 
2122,  for  the  loss  or  injury  thereof  from  any  cause 
whatever,  except: 

1.  An  inherent  defect,  vice,  or  weakness,  or  a 
spontaneous  action,  of  the  property  itself; 

2.  The  act  of  a  public  enemy  of  the  United 
States,  or  of  this  State: 

3.  The  act  of  the  law:   or. 

4.  Any  irresistible  superhuman  cause. 
Inland  carrier  defined:    See  ante,  sec.  2087. 
Liability  as  warehouseman:    See  ante,  sec.  2120. 
Termination    of    liability:    See    sees.  2118-2122. 

ante. 
Selling  perishable  articles:    See  infra,  sec.  2204. 


473  CARRIAGS.  §§  2195-2200 

§  2195.  A  commou  carrier  is  liable,  even  in  the 
cases  excepted  by  the  last  section,  if  his  ordinary 
negligence  exposes  the  property  to  the  cause  of  the 
loss. 

§  2196.  A  commou  carrier  is  liable  for  delay 
only  when  it  is  caused  by  his  want  of  ordinary 
care  and  diligence.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  251.  In  effect  July 
],  1874.] 

§  2197,  A  marine  carrier  is  liable  in  like  man- 
ner as  an  inland  carrier,  except  for  loss  or  injury 
caused  by  the  perils  of  the  sea  or  fire. 

§  2198.    The  liability  of  a  common  carrier  by 
sea  is  further  regulated  by  acts  of  Congress. 
See  also  sec.  2088. 

See  9  U.  S.  Stats.  635;    R.  S.,  sees.  4282  et  seq. 
General  average:    See  sees.  2148  et  seq. 

§  2199.    Perils  of  the  sea  are  from: 

1.  Storms  and  waves; 

2.  Rocks,  shoals,  and  rapids; 

3.  Other  obstacles,  though  of  human  origin; 

4.  Changes  of  climate; 

5.  The  confinement  necessary  at  sea; 

6.  Animals  peculiar  to  the  sea;  and, 

7.  All  other  dangers  peculiar  to  the  sea. 

§  2200.  A  common  carrier  of  gold,  silver,  pla- 
tina,  or  precious  stones,  or  of  imitations  thereof, 
in  a  manufactured  or  unmanufactured  state;  of 
timepieces  of  any  description;  of  negotiable  paper 
or  other  valuable  writings;  of  pictures,  glass,  or 
chinaware;  of  statuary,  silk,  or  laces;  or  of  plated 
ware  of  any  kind,  is  not  liable  for  more  than  fifty 
dollars  upon  the  loss  or  injury  of  any  one  pack- 
Jige  of  such  articles,  unless  he  has  notice,  upon  his 
receipt  thereof,  by  mark  upon  the  package  or 
otherwise,  of  the  nature  of  the  freight;  nor  is  such 


§§  2201-2204  CARRIAGE.  474 

carrier  liable  upon  auy  pacliage  carried  for  more 
than  the  value  of  the  articles  named  in  the  receipt 
or  the  bill  of  lading.  [Amendment,  approved 
March  80,  1874;  Amendments  1873-4,  251.  In  ef- 
fect July  1,  1874.] 

§  2201.  If  a  common  carrier  accepts  freight  for 
a  place  bej^ond  his  usual  route,  he  must,  unless  he 
stipulates  otherwise,  deliver  it  at  the  end  of  his 
route  in  that  direction  to  some  other  competent 
carrier  carrying  to  the  place  of  address,  or  con- 
nected with  those  who  thus  carry,  and  his  liability 
ceases  upon  malting  such  delivery. 

Delivery  in  general:    See  ante,  sees.  2118,  2119. 

§  2202.  If  freight  addressed  to  a  place  beyond 
the  usual  route  of  the  common  carrier  who  first 
received  it  is  lost  or  injured,  he  must,  within  a 
reasonable  time  after  demand,  give  satisfactory 
proof  to  the  consignor  that  the  loss  or  injury  did 
not  occur  while  it  was  in  his  charge,  or  he  will 
be  himself  liable  therefor. 

§  2203.  In  respect  to  any  service  rendered  by  a 
common  carrier  about  freight,  other  than  its  car- 
riage and  delivery,  his  rights  and  obligations  are 
defined  by  the  Titles  on  Deposit  and  Service. 

Deposit:    See  ante,  sees.  1813  et  seq. 

Service:  See  ante,  sees.  1965  et  seq. 

§  2204.  If,  from  any  cause  other  than  want  of 
ordinary  care  and  diligence  on  his  part,  a  common 
carrier  is  unable  to  deliver  perishable  property 
transported  by  him.  and  collect  his  charges  there- 
on, he  may  cause  the  property  to  be  sold  in  open 
marl^et,  to  satisfy  his  lien  for  freightage.  [New 
section  approved  March  30,  1874:  Amendments 
1873-4,  251.    In  effect  July  1,  1874.] 

Penalty  for  overcharges:    Penal  Code,  sec.  525. 


475  CARRIAGE.  §§  2207-2209 

ARTICLE  IV. 
COMMON    CARRIERS    OF    MESSAGES. 

§  2207.     Order  of  transmissiou  of  telegraphic  messages. 

§  2208.     Order  in  other  cases. 

§  2209.    Damages  when  message  is   refused  or  postponed. 

§  2207.  A  carrier  of  messages  by  telegrapL 
must,  if  it  is  practicable,  transmit  every  such  mes- 
sage immediately  upon  its  receipt.  But  if  this  is 
not  practicable,  and  several  messages  accumulate 
upon  his  hands,  he  must  transmit  them  in  the  fol- 
lowing order: 

1.  Messages  from  public  agents  of  the  United 
States  or  of  this  State,  on  public  business; 

2.  Messages  intended  in  good  faith  for  immedi- 
ate publication  in  newspapers,  and  not  for  any 
secret  use; 

3.  Messages  giving  information  relating  to  the 
sicknes  or  death  of  any  person; 

4.  Other  messages  in  the  order  in  which  they 
were  received. 

Carriers  of  messages:    See  ante,  sees.  2161,  2162. 
Xeglect  or  postponement  in  transmission:    See 
Penal  Code,  sec.  638. 

§  2208.  A  common  carrier  of  messages,  other- 
wise than  by  telegraph,  must  transmit  messages 
in  the  order  in  which  he  receives  them,  except 
messages  from  agents  of  the  United  States  or  of 
this  State,  on  public  business,  to  which  he  must 
always  give  priority.  But  he  may  fix  upon  certain 
times  for  the  simultaneous  transmission  of  mes- 
sages previously  received. 

Delivery  of  messages:    See  sec.  2161,  ante. 

§  2209.  Every  person  whose  message  is  refused 
or  postponed,  contrary  to  the  provisions  of  this 
chapter,  is  entitled  to  recover  from  the  carrier  his 


§§  2215-2217  TRUST.  476 

actual    damages,  and    fifty    dollars    in    addition 
thereto. 


TITLE  VIII. 

TRUST. 

Chapter  I.    Trusts  in  General,  §§  2215-2244. 

II.    Trusts  for  the  Benefit  of  Third  Per- 
sons, §§  2250-2289. 


CHAPTER  I. 

TRUSTS    IN    GENERAL. 

Article  I.     Nature  and  Creation  of  a  Trust,  §§  2215-2224. 
II.     Obligations  of  Trustees,   §§  2228-2239. 
III.     Obligations  of  Third  Persons,   §§  2243-2244. 

ARTICLE  I. 

NATURE  AND  CREATION  OF  A  TRUST. 

§  2215.  Trusts  classified. 

§  2216.  Voluntary  trust,   what. 

§  2217.  Involuntary   trust,    what. 

§  2218.  Parties  to   the   contract. 

§  2219.  What   constitutes   one  a   trustee. 

§  2220.  For  what  purpose  a  trust  may  be  created. 

§  2221.  Voluntary  trust,  how  created  as  to  trustor. 

§  2222.  How  created  as  to  trustee. 

§  2223.  Involuntary  trustee,   who  is. 

§  2224.  Involuntary  trust  resulting  from   negligence,    &c. 

§  2315.    A  trust  is  either: 

1.  Voluntary;  or 

2.  Involuntary. 

§  2216.  A  voluntary  trust  is  an  obligation  aris- 
ing out  of  a  personal  confidence  reposed  in,  and 
voluntarily  accepted  by,  one  for  the  benefit  of  an- 
other. 

§  2217.  An  involuntary  trust  is  one  which  is 
created  by  operation  of  law:  See  sees.  2223,  2224. 


477  TRUST.  §§  2218-2222 

§  2218.  The  person  whose  confidence  creates  a 
trust  is  called  the  trustor;  the  person  in  whom  the 
confidence  is  reposed  is  called  the  trustee;  and  the 
person  for  whose  benefit  the  trust  is  created  is 
called  the  beneficiary. 

§  2219.  Every  one  who  voluntarily  assumes  a 
relation  of  personal  confidence  with  another  is 
deemed  a  trustee,  within  the  meaning  of  this  chap- 
ter, not  only  as  to  the  person  who  reposes  such 
confidence,  but  also  as  to  all  persons  of  whose  af- 
fairs he  thus  acquires  information  which  was 
given  to  such  person  in  the  like  confidence,  or 
over  whose  affairs  he,  by  such  confidence,  obtains 
any  control. 

§  2220.  A  trust  may  be  created  for  any  pur- 
pose for  which  a  contract  may  lawfully  be  made, 
except  as  otherwise  prescribed  by  the  Titles  on 
Uses  and  Trusts  and  on  Transfers. 

§  2221.  Subject  to  the  provisions  of  section 
S52,  a  voluntary  trust  is  created,  as  to  the  trustor 
and  beneficiary,  by  any  words  or  acts  of  the  trus- 
tor, indicating  with  reasonable  certainty. 

1.  An  intention  on  the  part  of  the  trustor  to  cre- 
ate a  trust  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the 
trust. 

Creation  of  involuntary  trust:  See  sees.  2223. 
2224. 

Trusts  for  benefit  of  third  persons:  See  sec.  2251. 
post. 

§  2222.  Subject  to  the  provisions  of  section 
852,  a  voluntary  trust  is  created,  as  to  the  trustee, 
by  any  words  or  acts  of  his  indicating,  with  rea- 
sonable certainty; 

1.  His  acceptance  of  the  trust,  or  his  acknowl- 
edgment, made  upon  sufficient  consideration,  of  its 
existence:  and, 


§§  2223-2228  TRUST.  478 

2.  The  subject,  purpose,  and  beneficiary  of  the 
trust. 

§  2223.  One  who  wrongfully  detains  a  thing  is 
an  involuntary  trustee  thereof,  for  the  benefit  of 
the  owner. 

Compensation  of  involuntary  trustee:  See  sec. 
2275. 

§  2224.  One  who  gains  a  thing  by  fraud,  acci- 
dent, mistake,  undue  influence,  the  violation  of  a 
trust,  or  other  wrongful  act,  is,  unless  he  has  some 
other  and  better  right  thereto,  an  involuntary 
trustee  of  the  thing  gained,  for  the  benefit  of  the 
person  who  would  otherwise  have  had  it. 

Implied  trusts  is, that  is,  trusts  arising  where  one 
rakes  property  subject  to  trust  with  notice  there- 
of, or  not  for  value:  See  ante,  sees.  8G9,  870; 
consult  also  sees.  2243,  2263. 


ARTICLE  II. 

OBLIGATIONS    OF    TRUSTEES. 

§  2228.  Trustee's  obligation  to  good  faith. 

§  2229.  Trustee  not  to  use  property  for  his  own  profit. 

§  2230.  Certain    transactions   forbidden. 

§  2231.  Trustee's  influence  not  to  be  used  for  his  ad- 
vantage. 

§  2232.  Trustee  not  to  assume  a  trust  adverse  to  interest 
of  beneficiarj'. 

§  2233.  To   disclose  adverse  interest. 

§  2234.  Trustee   guilty    of   fraud,    when. 

§  2235.  Presumption  against  trustees. 

§  2236.  Trustee  mingling  trust  property  with  his  own. 

§  2237.  Measure  of  liability  for  breach  of  trust. 

§  2238.  Same. 

§  2239.  Co-trustees,  how  far  liable  for  each  other. 

S  2228.  In  all  matters  connected  with  his  trust, 
a  trustee  is  bound  to  act  in  the  highest  good  faith 
toward  his  beneficiary,  and  may  not  obtain  any 
advantasre  therein  over  the  latter  bv  the  slightest 


479  TRUST.  §§    2229.  2230 

misrepresentation,  concealment,  tlireat,  or  adverse 
pressure  of  any  kind. 

§  2229.  A  trustee  may  not  use  or  deal  with  the 
trust  property  for  his  own  profit,  or  for  any  other 
purpose  unconnected  with  the  trust,  in  any  man- 
ner. 

Note,— Purchaser  from  trustee  will  be  charged 
with  the  trust  or  not,  depending  upon  such  pur- 
chaser's knowledge  of  the  real  situation  of  the 
parties:    See  sec.  2263. 

Presumption  of  undue  influence.— So  careful  is 
the  law  of  the  interests  of  the  trustee  that  it  pre- 
sumes transactions  between  the  trustee  and  bene- 
ficiary to  hare  been  entered  into  by  the  latter  un- 
der undue  influence:  Sec.  22.35;  and  all  violation 
of  the  duties  of  the  trustee  prescribed  in  this  ar- 
ticle are  declared  to  be  fraudulent:    Sec.  2234. 

§  2230.  Neither  a  trustee  nor  any  of  his  agents 
may  take  part  in  any  transaction  concerning  the 
trust  in  which  he  or  any  one  for  whom  he  acts  as 
agent  has  an  interest,  present  or  contingent,  ad- 
verse to  that  of  his  beneficiary,  except  as  follows: 

1.  When  the  beneficiary,  having  capacity  to 
contract,  with  a  full  knowledge  of  the  motives  of 
the  trustee,  and  of  all  other  facts  concerning  the 
transaction  which  might  affect  his  own  decision, 
and  without  the  use  of  any  influence  on  the  part 
of  the  trustee,  permits  him  to  do  so: 

2.  When  the  beneficiary  not  having  capacity  to 
contract,  the  proper  court,  upon  the  like  informa- 
tion of  the  facts,  grants  the  like  permission:  or, 

3.  When  some  of  the  beneficiaries  having  capac- 
ity to  contract  and  some  not  having  it.  the  former 
grant  permission  for  themselves,  and  the  proper 
court  for  the  latter,  in  the  manner  above  pre- 
scribed. 

Duty  to  inform  beneficiary:  See  sec.  2233.  infra. 
Undertakina:  inconsistent  trust:    See  sec.  22.32. 


§§  2231-2237  TRUST.  480 

§  2231.  A  trustee  may  not  use  the  influence 
wliicli  his  position  gives  him  to  obtain  any  advant- 
age from  his  beneficiary. 

§  2232.  No  trustee,  so  long  as  he  remains  in  the 
trust,  may  undertake  another  trust  adverse  in  its^ 
nature  to  tlie  interest  of  his  beneficiary  in  the  sub- 
ject of  the  trust,  without  the  consent  of  the  latter. 

Assuming  another  trust,— This  section  is  but  a 
further  application  of  the  principle  stated  in  an- 
other form  in  section  2230,  that  the  trustee  must 
not  place  himself  in  a  position  inconsistent  with 
his  duty  to  his  beneficiary. 

Trustee's  duty  to  disclose  adverse  interest:  Com- 
pare with  sec.  2230. 

Removal  of  trustee:    See  sees.  2282,  2283. 

§  2233.  M  a  trustee  acquires  any  interest,  or 
l>ecomes  charged  with  any  duty,  adverse  to  the 
interest  of  his  beneficiary  in  the  subject  of  the 
trust,  he  must  immediately  inform  the  latter  there- 
of, and  may  be  at  once  removed, 

§  2234,  Every  violation  of  the  provisions  of  the 
preceding  sections  of  this  article  is  a  fraud  against 
the  beneficiary  of  the  trust, 

§  2235.  All  transactions  between  a  trustee  and 
his  beneficiary  during  the  existence  of  the  trust,  or 
while  the  influence  acquired  by  the  trustee  re- 
mains, by  which  he  obtains  any  advantage  from 
his  beneficiary,  are  presumed  to  be  entered  into 
by  the  latter  without  suflScient  consideration,  and 
under  undue  iufltience. 

§  2236.  A  trustee  who  willfully  and  tmu(;ces- 
sarily  mingles  the  trust  property  with  his  own,  so 
as  to  constittite  himself  in  appearance  its  absolute 
owner,  is  liable  for  its  safety  in  all  events. 

§  2237.    A  trustee  who  uses  or  disposes  of  the 


481  TRUST.  §§  2238-2244: 

trust  property,  coutrary  to  section  222[),  may,  at 
the  option  of  the  beueticiary,  be  required  to  ac- 
count for  all  profits  so  made,  or  to  pay  the  value 
of  its  use,  and,  if  he  has  disposed  thereof,  to  re- 
place it,  with  its  fruits,  or  to  account  for  its  pro- 
ceeds, with  interest. 

Liability  for  noninvestment  of  funds:  See  sec. 
2262,  post. 

Degree  of  diligence  requisite:    Sec.  2259,  post. 

§  2238.  A  trustee  who  uses  or  disposes  of  th^ 
trust  property  in  any  manner  not  authorized  by 
the  trust,  but  in  good  faith,  and  with  intent  to 
serve  the  interests  of  the  beneficiary,  is  liable  only 
to  make  good  whatever  is  lost  to  the  beneficiary 
by  his  error. 

§  2239.  A  trustee  is  responsible  for  the  wrong- 
ful acts  of  a  cotrustee  to  which  he  consented,  or 
which,  by  his  negligence,  he  enabled  the  latter  to 
commit,  but  for  no  others. 

Compare  also  this  section  with  sections  2368  and 
2288. 


ARTICLE  III. 

OBLIGATIONS    OP    THIRD    PERSONS. 

§  2243.    Third  person,  when  involuntary  trustee. 
§  2244.    When  third  person  must  see  to  application  of  trust 
property. 

§  2243.  Every  one  to  whom  property  is  trans- 
ferred in  violation  of  a  trust,  holds  the  same  as  an 
involuntary  trustee  under  such  trust,  unless  he 
purchased  it  in  good  faith,  and  for  a  valuable  con- 
sideration. 

§  2244.    One  who   actually   and   in   good   faith 

Civ.    Code. -41. 


§§  2250-2251  TRUST.  482 

transfers  any  money  or  other  property  to  a  trus- 
tee, as  such,  is  not  bound  to  see  to  the  application 
thereof,  and  his  rights  can  in  no  way  be  prejudiced 
by  a  misapplication  thereof  by  the  trustee.  Other 
persons  must,  at  their  peril,  see  to  the  proper  ap- 
plication of  money  or  other  property  paid  or  de- 
livered by  them. 

CHAPTER  II. 

TRUSTS   FOR   THE   BENEFIT   OF   THIRD   PERSONS. 

Article  I.  Nature  and  Creation  of  the  Trust,   §§  2250-2254. 

II.  Obligations    of    Trustees,    §§    2258-2263. 

III.  Powers  of  Trustees,  §§  2267-2269. 

IV.  Rights  of  Trustees,   §§  2273-2275. 

V.     Termination  of  the  Trust,   §§  2279-2283. 
VI.     Succession    or   Appointment   of     New     Trustees, 
§§    2287-2289. 


AliTICLE  I. 

NATURE  AND  CREATION  OF  THE  TRUST. 

§  2250.  Who  are  trustees  within   scope   of  this   chapter. 

§  2251.  Creation   of  trust. 

§  2252.  Trustees   appointed    by   court. 

§  2253.  Declaration  of  trust. 

§  2254.  Same. 

§  2250.  The  provisions  of  this  chapter  apply 
only  to  express  trusts,  created  for  the  benefit  of 
another  than  the  trustor,  and  in  which  the  title  to 
the  trust  property  is  vested  in  the  trustee;  not  in- 
cluding, however,  those  of  executors,  administra- 
tors, and  guardians,  as  such. 

§  2251.  The  mutual  consent  of  a  trustor  and 
trustee  creates  a  trust  of  which  the  beneficiary 
may  take  advantage  at  any  time  prior  to  its  re- 
scission. 

Revoking  trust,  beneficiary's  consent  necessary: 
See  sec.  2280. 


483  TRUST.  §§  2252-2259 

Promise  for  beuetit  of  tliird  person:  See  ante, 
sec.  1559. 

§  2252.  When  a  trustee  is  appointed  by  a  court 
or  public  otllcer,  as  sucli,  sucli  court  or  officer  is 
ilie  trustor,  within  the  meaning  of  the  last  section. 

§  2253.  The  nature,  extent,  and  object  of  a 
trust  are  expressed  in  the  declaration  of  trust. 

S  2254.  All  declarations  of  a  trustor  to  his  trus- 
tees, in  relation  to  the  trust,  before  its  acceptance 
by  the  trustees,  or  any  of  them,  are  to  be  deemed 
l)art  of  the  declaration  of  the  trust,  except  that 
when  a  declaration  of  trust  is  made  in  writing, 
all  previous  declarations  by  the  same  trustor  are 
merged  thereon. 

articlp:  II. 

OBLIGATIONS    OF   TRUSTEES. 

?  2258.  Trustees  must  obey  declaration  of  trust. 

.$  2259.  Degree  of  care  and  diligence  in  execution  of  trust. 

§  2260.  Duty  of  trustee  as  to  appointment  of  successor. 

5  2261.  Investment  of  money  by  trustee. 

S  2262.  Interest,    simple   or   compound,   on   omission   to   in- 
vest trust  moneys. 

§  2263.  Purchase  by  trustee  of  claims  against  trust  fund. 

§  2258.  A  trustee  must  fulfill  the  purpose  of 
The  trust,  as  declared  at  its  creation,  and  must  fol- 
low all  the  directions  of  the  trustor  given  at  that 
rime,  except  as  modified  by  the  consent  of  all  par- 
ties interested,  in  the  same  manner,  and  to  the 
same  extent,  as  an  employee. 

Trustee  must  follow  declaration  of  trust:  Cora- 
pare  with  the  duty  of  employee,  sec.  19S1,  ante. 

Authority  of  trustee,  generally:  Se^see.  2267, 
post. 

i5  2259.  A  trustee,  whether  he  receives  any 
compensation  or  not,  must  use  at  least  ordinary 
care  and  diligence  in  the  execution  of  his  trust. 


§§  2260-2263  TRUST.  484 

Obligations  of    trustees:    See,    generally,   ante, 

sees.  2228  et  seq. 

§  2260.  If  a  trustee  procures  or  assents  to  his 
discharge  from  his  office,  before  his  trust  is  fully 
executed,  he  must  use  at  least  ordinary  care  and 
diligence  to  secure  the  appointment  of  a  trust- 
worthy successor  before  accepting  his  own  final 
discharge. 

Succession  or  appointment  of  new  trustees:  See 
post,  sec.  2287. 

§  2261.  A  trustee  must  invest  money  received 
by  him  under  the  trust,  as  fast  as  he  collects  a 
sufficient  amount,  in  such  manner  as  to  afford  rea- 
sonable security  and  interest  for  the  same. 

§  2262.  If  a  trustee  omits  to  invest  the  trust 
moneys  according  to  the  last  section,  he  must  pay 
simple  interest  thereon,  if  such  omission  is  neg- 
ligent merely,  and  compound  interest  if  it  is  will- 
ful. 

"^Trustee's   liability   for  interest:     Compare   with 
sec.  2237,  ante. 

§  2263.  A  trustee  cannot  enforce  any  claim 
against  the  trust  property  which  he  purchases  af- 
ter or  in  contemplation  of  his  appointment  as  trus- 
tee; but  he  may  be  allowed,  by  any  competent 
court,  to  charge  to  the  trust  property  what  he  has 
in  good  faith  paid  for  the  claim,  upon  discharging 
the  same. 

Purchasing  debts  agninst  tlio  trust  ostnto  pro- 
liibiterl:    See  sec.  22.30.  ante. 


485  TRUST.  §§  2267-2269 

AKTICLE  III. 

POWERS    OF   TRUSTEES. 

§  2267.    Trustee's  powers  as   agent. 

§  2268.    All  must  act. 

§  2269.     Discretionary  powers. 

§  2267.  A  trustee  is  a  geueral  agent  for  the 
trust  property.  His  autliority  is  such  as  is  con- 
ferred upon  him  by  the  declaration  of  trust  and 
l)y  this  chapter,  and  none  other.  His  acts,  within 
the  scope  of  his  authority,  bind  the  trust  property 
to  the  same  extent  as  the  acts  of  an  agent  bind 
his  principal. 

Powers  to  two  or  more  trustees:  See  sec.  2288, 
post,  and  sec.  860,  ante. 

Agent's  acts  binding  principal:  See  sees.  2330- 
2339,  post. 

For  what  purposes  trusts  may  be  created:  See 
sec.  857.   ante. 

§  2268.  Where  there  are  several  cotrustees,  all 
must  unite  in  any  act  to  bind  the  trust  property, 
unless  the  declaration  of  trust  otherwise  provides. 

Survival  of  trust:    See  post,  sec.  2288. 

Liability  for  acts  of  cotrustee:  See  ante,  sec. 
2239. 

Executors,  when  one  or  majority  may  act:  See 
rode  Civ.  Proc.  sec.  1355. 

§  2269.  A  discretionary  power  conferred  upon 
a  trustee  is  presumed  not  to  be  left  to  his  arbi- 
trary discretion,  btit  may  be  controlled  by  the 
l»roper  court  if  not  reasonably  exercised,  unless  an 
absolute  discretion  is  clearly  conferred  by  the  dec- 
laration of  trust. 


2273-2275  TRUST. 


ARTICLE  IV. 

RIGHTS    OF   TRUSTEES. 

§  2273.    Indemnification  of  trustee. 
§  2274.     Compensation  of  trustee. 
§  2275.     Involuntary  trustee. 

§  2273.  A  trustee  is  entitled  to  tlie  repayment, 
out  of  tlie  trust  property,  of  all  expenses  actually 
and  properly  incurred  by  liim  in  the  performance 
of  his  trust.  He  is  entitled  to  the  repayment  of 
even  unlaAvful  expenditures,  if  they  were  produc- 
tive of  actual  benefit  to  the  estate. 

§  2274.  Except  as  provided  in  section  1700  of 
the  Code  of  Civil  Procedure,  Avhen  a  declaration 
of  trust  is  silent  upon  the  subject  of  compensa- 
tion the  trustee  is  entitled  to  the  same  compensa- 
tion as  an  executor.  If  it  specifies  the  amount  of 
his  compensation,  he  is  entitled  to  the  amount 
thus  specified  and  no  more.  If  it  directs  that  he 
shall  be  allowed  a  compensation,  but  does  not 
specify  the  rate  or  amount,  he  is  entitled  to  such 
compensation  as  may  be  reasonable  under  the  cir- 
cumstances. [Amendment  approved  March  19. 
1889;  Stats.  1889.  334.    In  effect  March  19,  1889.] 

Compensation  of  trustees  the  same  as  that  of 
executor  where  the  declaration  of  trust  is  silent: 
See  sec.  1618.  Code  Civ.  Proc. 

Involuntary  trustee  entitled  to  no  compensation, 
wnen:    see  sec.  227o. 

§  2275.  An  involuntary  trustee,  who  becomes 
such  through  his  own  fault,  has  none  of  the  rights 
mentioned   in  this  article. 

Involuntary  trustee  defined:  Sees.  2217.  222:^>. 
2224.  ante. 


TRUST.  S§  2279-2282 


ARTICLE   V. 

TERMINATION  OF  THE   TRUST. 

§  2279.  Trust,  how  extinguished. 

§  2280.  Not  revocable. 

§  2281.  Trustee's  office,    how  vacated. 

§  2282.  Trustee,    how    discharged. 

§  2283.  Removal  by  District  Court. 

§  2279.  A  trust  is  extiugiiislied  by  the  entire 
fiiltillmeut  of  its  object,  or  by  such  object  becom- 
iug  possible  or  nulawfiil. 

§  2280.  A  trust  cauuot  be  revoked  by  the  trus- 
tor after  its  acceptance,  actual  or  presumed,  by 
tlie  trustee  and  beneficiaries,  except  by  the  con- 
sent of  all  the  beneficiaries,  unless  the  declaration 
of  trust  reserves  a  power  of  revocation  to  the 
trustor,  and  in  that  case  the  power  must  be  strict- 
ly pursued. 

^  2281.    The  ottice  of  a  trustee  is  vacated: 
1.    By  his  death;  or, 
•J.    By  his  discharge. 

§  2282.  A  trustee  can  be  discharged  from  his 
trust  only  as  follows: 

1.  By  the  extinction  of  the  trust: 

2.  By  the  completion  of  his  duties  under  the 
Trust: 

o.  By  such  means  as  may  be  prescribed  T)y  the 
ileclaration  of  trust: 

4.  By  the  consent  of  the  beneficiary,  if  he  had 
capacity  to  contract: 

.'.  By  the  judgment  of  a  competent  tribunal,  in 
a  direct  proceeding  for  that  purpose,  that  he  is  of 
unsound   mind:    or. 

6.  By  the  Superior  Court.  [Amendment  ap- 
proved'Feb.  1.5.  1883:  Statutes  1883.  3.  In  effect 
February  15.  1883.1 


§§  2283-2289  TRUST.  488 

§  2283.  The  Superior  Court  may  remove  any 
trustee  who  has  violated  or  is  unfit  to  execute  the 
trust;  or  may  accept  the  resignation  of  a  trustee. 
[Amendment,  approved  April  6,  1880;  Amen«lments 
1880,  8.    In  effect  April  5,  1880.] 


ARTICLE  VI. 

SUCCESSION    OR  APPOINTMENT   OF   NEW   TRUSTEES. 

§  2287.  Vacant  trusteeship  filled  by  court. 
§  2288.  Survivorship  between  co-trustees. 
§  2289.    District  Court  as  trustee. 

§  2287.  The  Superior  Court  may  appoint  a 
trustee  whenever  there  is  a  vacancy,  and  the  dec- 
laration of  trust  does  not  provide  a  practicable 
method  of  appointment.  [Amendment,  approved 
April  6,  1880;  Amendments  1880,  8.  In  effect  April 
5,  1880.] 

§  2288.  On  the  death,  renunciation,  or  dis- 
charge of  one  of  several  cotrustees,  the  trust  sur- 
vives to  the  others. 

This  section  is  consistent  with  section  860;  see 
also  sec.  2268,  ante. 

Survival  of  guardianship:    See  sec.  252,  ante. 

§  2289.  When  a  trust  exists  without  any  ap- 
pointed trustee,  or  where  all  the  trustees  renounce, 
die.  or  are  discharged,  the  Superior  Court  of  the 
county  where  the  trust  property,  or  some  portion 
thereof,  is  situated  must  appoint  another  trustee, 
and  direct  the  execution  of  the  trust.  The  court 
may,  in  its  discretion,  appoint  the  original  num- 
ber, or  any  less  number  of  trustees.  [Amend- 
ment, approved  April  6.  1880;  Amendments  1880. 
8.    In  effect  April  5,  1880.] 


489 

AGENCY.                              §§  2295,  2296 

TITLE  IX. 

AGENCY. 

(^'bapter  1. 
II. 

Agency  iu  General.  §§  2295-2356. 
Particular  Agencies,  §§  2362-2389. 

Article  I. 

II. 

III. 

IV. 

V. 
VI. 


CHAPTER  I. 
AGENCY   IN   GENERAL. 

Definition   of   Agency,   §§   2295-2300. 

Authority  of  Agents,  §§  2304-2326, 

Mutual  Obligations  of  Principals  and  Third  Per- 
sons,   §§  2330-2339. 

Obligations  of  Agents  to  Third  Persons,  §§  2342- 
2345. 

Delegation  of  Agency,   §§  2349-2351. 

Termination  of  Agency,   §§  2355-2356. 


AKTICLE  I. 

DEFINITION  OP   AGENCY. 

§  2295.  Agency,  what. 

§  2296.  Who  may  appoint,  and  who  may  be  an  agent. 

§  2297.  Agents,    general  or  special. 

§  2298.  Agency,   actual  or  ostensible. 

§  2299.  Actual  agency. 

§  2300.  Ostensible  agency. 

§  2295.  An  agent  is  one  who  represents  an- 
other, called  the  principal,  in  dealings  with  third 
persons.    Such  representation  is  called  agency. 

Master  and  servant:   See  sees.  2009  et  seq. 

Factors:    See  sees.  2026  et  seq. 

Agents:  See  sees.  2019-2022. 

§  2296.  Any  person  having  capacity  to  con- 
tract may  appoint  an  agent,  and  any  person  may 
be  an  agent. 


§§  2297-2300  AGENCY.  490 

§  2297.  An  ageut  for  a  particular  act  or  traus- 
actiou  is  called  a  special  agent.  All  others  are 
general  agents. 

§  2298.  An  agency  is  either  actual  or  osten- 
sible. 

Actual  agent's  authority:  Sees.  2315,  2316,  2318. 
2319. 

Ostensible  agent's  authority:  Sees.  2315,  2317- 
2319,  2334. 

§  2299.  An  agency  is  actual  when  the  agent  is 
really  employed  by  the  principal. 

§  2300.  An  agency  is  ostensible  when  the  prin- 
cipal intentionally,  or  by  want  of  ordinary  care, 
causes  a  third  person  to  believe  another  to  be  his 
agent  who  is  not  really  employed  by  him. 

See  sec.  2317. 


ARTICLE  II. 

AUTHORITY  OP  AGENTS. 

§  2304.  What  authority  may  be  conferred. 

§  2305.  Agent  may   perform   acts   required    of   principal   by 

Code. 

§  2306.  Agent  cannot  have  authority  to  defraud  principal. 

07.  Creation  of  agency. 

§  2308.  Consideration  unnecessary. 

§  2309.  Form  of  authority. 

§  2310.  Ratification   of  agent's  act. 

§  2311.  Ratification  of  part  of  a  transaction. 

§  2312.  When  ratification  void. 

§  2313.  Ratification   not  to   work   injury  to    third   persons. 

S  2314.  Rescission  of  ratification. 

§  2315.  Measure  of  agent's  authority. 

§  2316.  Actual  authority,  what. 

§  2317.  Ostensible  authority,    what. 

§  2318.  Agent's    authority   as    to    persons   having   notice    of 

restrictions  upon  it. 

§  2319.  Agent's  necessary  authority. 

§  2320.  Agent's  power  to  disobey  instructions. 

§  2321.  Authority  to  be  construed  by  its  specific  rather  than 

by  its  general  terms. 


491  AGENCY.  §§  2304-2309 

§  2322.     Exceptions  to  general  authority. 

§  2323.  What  included  in  authority  to  sell  personal  prop- 
erty. 

§  2324.    What  included  in  authority  to  sell  real  property. 

§  2325.  Authority  of  general  agent  to  receive  price  of  prop- 
erty. 

§  2326.    Authority    of    special    agent    to    receive    price. 

§  2304.  Au  ageut  may  he  authorized  to  do  any 
acts  which  liis  principal  miglit  do,  except  those  to 
which  the  latter  is  bound  to  give  his  personal 
attention. 

Delegation  of  antliority  l)y  agent:  Sees.  2849- 
li.-'.ol. 

§  2305.  Every  act  which,  according  to  this 
("ode,  may  be  done  by  or  to  any  person,  may  be 
done  by  or  to  the  agent  of  such  person  for  that 
]iurpose.  unless  a  contrary  intention  clearly  ap- 
l>cars. 

§  2306.  An  agent  can  never  have  authority, 
either  actual  or  ostensible,  to  do  an  act  which  is, 
and  is  linown  or  suspected  by  the  person  with 
whom  he  deals  to  be,  a  fraud  upon  the  principal. 

§  2307.  An  agency  may  be  created,  and  an  au- 
ihority  may  be  conferred,  by  a  precedent  author- 
ization or  a  subsequent  ratification, 

§  2308.  A  consideration  is  not  necessary  to 
malie  an  authority,  whether  precedent  or  subse- 
<iuent,  binding  upon  the  principal. 

§  2309.  An  oral  authorization  is  sufficient  for 
any  purpose,  except  that  an  authority  to  enter 
into  a  contract  required  by  law  to  be  in  writing 
can  only  be  given  by  an  instrument  in  writing. 

Statute  of  fraud:  Sec.  ir)24,  ante. 

Power  of  nttoriu'v  r<>  cxccnrc  mortgage:  Sit  so<-. 
2083.  post. 


§§  2310-2317  AGENCY.  492 

§  2310.  A  ratiticatiou  cau  be  made  only  iu  the 
manuer  that  would  have  been  necessary  to  con- 
fer an  original  authority  for  the  act  ratified,  or 
Avhere  an  oral  authorization  would  suffice,  by  ac- 
cepting or  retaining  the  benetit  of  the  act,  with 
notice  thereof. 

A  ratification  is  not  binding,  and  may  be  re- 
scinded, if  made  without  full  knowledge  of  the 
facts:    See  sec.  2314,  post. 

Ratification  of  part:    See  sec.  2311. 

§  2311.  Ratification  of  part  of  an  indivisible 
transaction  is  a  ratification  of  the  whole.  See  sec. 
2323,  post. 

§  2312.  A  ratification  is  not  valid  unless,  at  the 
time  of  ratifying  the  act  done,  the  principal  has 
power  to  confer  authority  for  such  an  act. 

§  2313.  No  unauthorized  act  can  be  made 
valid,  retroactively,  to  the  prejudice  of  third  per- 
sons, without  their  consent. 


§  2314.  A  ratification  may  be  rescinded  when 
made  without  such  consent  as  is  required  in  a  con- 
tract, or  with  an  imperfect  knowledge  of  the  ma- 
terial facts  of  the  transaction  ratified,  but  not 
otherwise. 

§  2315.    An   agent   has   such   authority   as   the 
principal,  actually  or  ostensibly,  confers  upon  him. 
See  infra.  2319. 
Actual  agent  defined:  Sec.  2299. 

§  2316.  Actual  authority  is  such  as  a  principal 
intentionally  confers  upon  the  agent,  or  inten- 
tionally, or  by  want  of  ordinary  care,  allows  the 
agent  to  believe  himself  to  possess. 

§  2317.  Ostensible  authority  is  such  as  a  prin- 
cipal, intentionally  or  by  want  of  ordinary  care, 


i93  AGENCY.  §§  2318-2321 

causes  or  allows  a  third  person  to  believe  the 
agent  to  possess. 

Ostensible  agent  defined:    Sec.  2300. 

Estoppel. — This  is  a  statement  of  the  familiar 
principle  that  the  agent's  authority  extends  as  far 
as  he  has  been  held  out  to  the  world  as  possessing 
the  power  which  he  uses.  The  whole  principle  of 
implied  agency  is  really  an  application  of  the  doc- 
trine of  estoppel  in  pais. 

Estoppel  from  a  subsequent  ratification:  See 
sees.  2307,  2310,  2312-2314,  ante. 

§  2318.  Every  agent  has  actually  such  author- 
ity as  is  defined  by  this  title,  unless  specially  de- 
prived thereof  by  his  principal,  and  has  even  then 
such  authority  ostensibly,  except  as  to  persons 
who  have  actual  or  constructive  notice  of  the  re- 
striction upon  his  authority. 

§  2319.    An  agent  has  authority: 

1.  To  do  every  thing  necessary  or  proper  and 
usual,  in  the  ordinary  course  of  business,  for  ef- 
fecting the  purpose  of  his  agency;    and, 

2.  To  make  a  representation  respecting  any 
matter  of  fact,  not  including  the  terms  of  his  au- 
thority, but  upon  which  his  right  to  use  his  au- 
thority depends,  and  the  truth  of  which  cannot  be 
determined  by  the  use  of  reasonable  diligence  on 
the  part  of  the  person  to  whom  the  representation 
is  made. 

§  2320.  An  agent  has  power  to  disobey  in- 
structions in  dealing  with  the  subject  of  the 
agency,  in  cases  where  it  is  clearly  for  the  inter- 
est of  his  principal  that  he  should  do  so,  and  there- 
is  not  time  to  communicate  with  the  principal. 

§  2321.  When  an  authority  is  given  partly  in 
general  and  partly  in  specific  terms,  the  general 
authority  gives  no  higher  powers  than  those  spe- 
cifically mentioned. 

Civ.    Code.-42. 


§§  2322-2326  AGENCY.  494 

§  2322.  Au  authority  expressed  in  general 
terms,  however  broad,  does  uot  authorize  au 
agent: 

1.  To  act  in  his  own  name,  unless  it  is  the 
usual  course  of  business  to  do  so; 

2.  To  define  the  scope  of  his  agency;  or, 

3.  To  do  any  act  which  a  trustee  is  forbidden 
to  do  by  Article  II.,  Chapter  I.,  of  the  last  Title. 

Defining  scope  of  agency:   See  sec.  2319,  subd.  2, 
ante. 
Obligation  of  trustees:    Sees.  2228-2239,  ante. 

§  2323.  An  authority  to  sell  personal  property 
includes  authority  to  warrant  the  title  of  the  prin- 
cipal, and  the  quality  and  quantity  of  the  prop- 
erty. 

Auctioneers:    See  sec.  2362,  subd.  3,  post. 

§  2324.  An  authority  to  sell  and  convey  real 
property  includes  authority  to  give  the  usual  cove- 
nants of  warranty. 

§  2325.  A  general  agent  to  sell,  who  is  intrust- 
ed by  the  principal  with  the  possession  of  the 
thing  sold,  has  authority  to  receive  the  price. 

Agent  to  collect:  Ante,  sec.  2021. 

§  2326.  A  special  agent  to  sell  has  authority 
to  receive  the  price  on  delivery  of  the  thing  sold, 
but  not  afterwards. 


495  AGENCY.  §§  2330-2333 


ARTICLE  III. 

MUTUAL    OBLIGATIONS    OF   PRINCIPALS   AND    THIRD 
PERSONS. 

§  2330.  Principal,  how  affected  by  acts  of  agent  within 
the  scope  of  his  authority. 

§  2331.  Principal,  when  bound  by  incomplete  execution  of 
authority. 

§  2332.    Notice  to  agent    when  notice  to  principal. 

§  2333.  Obligation  of  principal  when  agent  exceeds  his  au- 
thority. 

§  2334.     For  acts  done  under  a  merely  ostensible  authority. 

§  2335.    When  exclusive  credit  is   given  to   agent. 

§  2336.  Rights  of  person  who  deals  with  agent  without 
knowledge  of  agency. 

§  2337.  Instrument  intended  to  bind  principal  does  bind 
him. 

§  2338.  Principal's  responsibility  for  agent's  negligence  or 
omission. 

§  2339.  Principal's  responsibility  for  wrongs  willfully  com- 
mitted by  the  agent. 

§  2330.  An  agent  represents  his  principal  for 
all  purposes  within  the  scope  of  his  actual  or  os- 
tensible authority,  and  all  the  rights  and  liabili- 
ties which  would  accrue  to  the  agent  from  trans- 
actions within  such  limit,  if  they  had  been  entered 
into  on  his  own  account,  accrue  to  the  principal: 
See  sec.  2322,  subd.  3.  ante. 

§  2331.  A  principal  is  bound  by  an  incomplete 
execution  of  an  authority,  when  it  is  consistent 
with  the  whole  purpose  and  scope  thereof,  but 
not  otherwise. 

§  2332.  As  against  a.  principal,  both  principal 
and  agent  are  deemed  to  hare  notice  of  whatever 
either  has  notice  of,  and  ought,  in  good  faith,  and 
the  exercise  of  ordinary  care  and  diligence,  to 
communicate  to  the  other. 

§  2333.  When  an  agent  exceeds  his  authority, 
his  principal  is  bound  by  his  authorized  acts  so  far 


§§  2334-2339  AGENCY.  496 

only  as  tliey  can  be  plainly  separated  from  those 
which  are  unauthorized. 

§  2334.  A  principal  is  bound  by  acts  of  his 
agent,  under  a  merely  ostensible  authority,  to 
those  persons  only  who  have  in  good  faith,  and 
without  ordinary  negligence,  incurred  a  liability 
or  parted  with  value,  upon  the  faith  thereof:  See 
sec.  2317,  ante. 

§  2335.  If  exclusive  credit  is  given  to  an  agent 
by  the  person  dealing  with  him,  his  principal  is 
exonerated  by  payment  or  other  satisfaction  made 
by  him  to  his  agent  in  good  faith,  before  receiv- 
ing notice  of  the  creditor's  election  to  hold  him 
responsible. 

§  2336.  One  who  deals  with  an  agent  without 
knowing  or  having  reason  to  believe  that  the 
agent  nets  as  such  in  the  transaction,  may  set  off 
against  any  claim  of  the  principal  arising  out  of 
the  same,  all  claims  which  he  might  have  set  off 
against  the  agent  before  notice  of  the  agency. 

§  2337.  An  instrument  within  the  scope  of  his 
authority,  by  which  an  agent  intends  to  bind  his 
principal,  does  bind  him  if  such  intent  is  plainly 
inferable  from  the  instrument  itself. 

§  2338.  Unless  required  by  or  under  the  au- 
thority of  law  to  employ  that  particular  agent,  a 
principal  is  responsible  to  third  persons  for  the 
negligence  of  his  agent  in  the  transaction  of  the 
business  of  the  agency,  including  wrongful  acts 
committed  by  such  agent  in  and  as  a  part  of  the 
transaction  of  such  business,  and  for  his  willful 
omission  to  fulfil  the  obligations  of  the  principal: 
See  sec.  2384,  post,  and  see  sec.  2343,  subd.  3,  post. 

§  2339.  A  principal  is  responsible  for  no  other 
wrongs  committed  by  his  agent  than  those  men- 
tioned in  the  last  section,  unless  he  has  authorized 


497  AGENCY.  §§  2342-2344 

or  ratiiied  them,  even  though  they  are  committed 
while  the  agent  is  engaged  in  his  service. 


ARTICLE  IV. 

OBLIGATIONS   OF  AGENTS   TO  THIRD   PERSONS. 

§  2342.    Warranty  of  authority. 

§  2343.    Agent's  responsibility  to  third  persons. 

§  2344.     Obligation  of  agent  to  surrender  property  to  third 

person. 
§  2345.    Agent  not  having  capacity  to  contract. 

§  2342.  One  who  assumes  to  act  as  an  agent 
thereby  warrants,  to  all  who  deal  with  him  in  that 
capacity,  that  he  has  the  authority  which  he  as- 
sumes. 

Damages  for  breach  of  warrant  of  authority: 
Sec.  3318,  post. 

§  2343.  One  who  assumes  to  act  as  an  agent 
is  responsible  to  third  persons  as  a  principal  for 
his  acts  in  the  course  of  his  agency,  in  any  of  the 
following  cases,  and  in  no  others: 

1.  When,  with  his  consent,  credit  is  given  to  him 
personally  in  a  transaction; 

2.  When  he  enters  into  a  written  contract  in  the 
name  of  his  principal,  without  believing,  in  good 
faith,  that  he  has  authority  to  do  so;    or, 

3.  When  his  acts  are  wrongful  in  their  nature. 
Master  of  ship  personally  liable:  Sec.  2382,  post. 

§  2344.  If  an  agent  receives  anything  for  the 
benefit  of  his  principal,  to  the  possession  of  which 
another  person  is  entitled,  he  must,  on  demand, 
surrender  it  to  such  person,  or  so  much  of  it  as  he 
has  under  his  control  at  the  time  of  demand,  on 
being  indemnified  for  any  advance  which  he  has 
made  to  his  principal,  in  good  faith,  on  account 
of  the  same:  and  is  responsible  therefor,  if,  after 


■^  •234»-2351  AGENCY.  498 

notice  from  the  owuer,  lie  delivers  it  to  his  prin- 
cipal. 

Compare  with  sections  on  deposit,  sees.  1822, 
1825,  1826,  ante. 

§  2345.  The  provisions  of  this  article  are  sub- 
ject to  the  provisions  of  Part  I,  Division  First,  of 
this  Code.     [§§  25-42.] 


AKTICLE  V. 
■      DELEGATION   OF  AGENCY. 

§  2349.    Agent's  delegation  of  his  powers. 
§  2350.    Agent's  unauthorized  employment  of  sub-agent. 
§  2351.    Sub-agent    rightfully     appointed,     represents    prin- 
cipal. 

§  2349.  An  agent,  unless  specially  forbidden 
by  his  principal  to  do  so,  can  delegate  his  powers 
to  another  person  in  any  of  the  following  cases, 
and  in  no  others: 

1.  When  the  act  to  be  done  is  purely  mechan- 
ical; 

2.  When  it  is  such  as  the  agent  cannot  himself, 
and  the  subagent  can  lawfully  perform; 

;l  When  it  is  the  usage  of  the  place  to  delegate 
such  powers;  or. 

4.  AVhen  such  delegation  is  specially  authorized 
by  the  principal. 

§  2350.  If  an  agent  employs  a  subagent  with- 
out authority,  the  former  is  a  principal  and  the 
latter  his  agent,  and  the  principal  of  the  former 
has  no  connection  witli  the  latter. 

See  sec.  2022,  ante. 

§  2351.  A  subagent.  lawfully  appointed,  repre- 
sents tlie  principal  in  like  manner  with  the  orig- 
inal agent:  and  the  original  agent  is  not  responsi- 
ble to  third  persons  for  the  nets  of  the  subagent. 


499  AGENCY.  §§  2355-2362 

ARTICLE  VI. 
TERMINATION  OF  AGENCY. 

§  2355.    Termination  of  Agency. 
§  2356.     Same. 

§  2355.  An  agency  is  terminated,  as  to  every 
pc-rson  baYin?>-  notice  thereof,  by: 

1.  The  expiration  of  its  term; 

2.  The  extinction  of  its  subject; 

0.  The  death  of  the  agent; 

4.    His  renunciation  of  the  agency,  or, 
r>.    The  incapacity  of  the  agency  to  act  as  such. 
As    to   duty    of    gratuitous   employee:  See    sec. 
1975,  ante. 

§  2356.  Unless  the  power  of  an  agent  is  cou- 
pled with  an  interest  in  the  subject  of  the  agency, 
it  is  terminated,  as  to  every  person  having  notice 
thereof,  by: 

1.  Its  revocation  by  the  principal; 


o 


His  death:  or. 


3.    His  incapacity  to  contract. 

CHAPTER  II. 

PARTICULAR  AGENCIES. 

Article  I.  Auctioneers,   §5  2362-2363. 

II.  Factors,    §§   2367-2369. 

III.  Shipmasters  and  Pilots,   §§  2373-2385. 

IV.  Ships'  Managers,  §§  2388-2389. 

ARTICLE  I. 

AUCTIONEERS. 

§  2362.    Auctioneer's  authority  from  the  seller. 
?  2363.    Auctioneer's  authority  from  the  bidder. 

§  2362.  An  auctioneer,  in  the  absence  ')f  spec- 
ial authorization  or  usage  to  the  contrary,  has  au- 
rhoritv  from  the  seller  onlv  as  follows: 


§§  2363-2368  AGENCY.  500 

1.  To  sell  by  public  auction  to  the  highest  bid- 
der; 

2.  To  sell  for  cash  only,  except  such  articlis  as 
are  usually  sold  on  credit  at  auction; 

3.  To  warrant,  in  like  manner  with  other  agents 
to  sell  according  to  section  2323; 

4.  To  prescribe  reasonable  rules  and  terms  of 
sale; 

5.  To  deliver  the  thing  sold,  upon  payment  of 
the  price; 

6.  To  collect  the  price;  and, 

7.  To  do  whatever  else  is  necessary,  or  proper 
and  usual,  in  the  ordinary  course  of  business,  for 
effecting  these  purposes. 

See  Polit.  Code,  sees.  3284  et  seq. 

§  2363.  An  auctioneer  has  authority  from  a 
bidder  at  the  auction,  as  well  as  from  the  seller, 
to  bind  both  by  a  memorandum  of  the  contract, 
as  prescribed  in  the  Title  on  Sale. 

Concerning  auctioneers:  Polit.  Code,  sees.  3284- 
3324. 

See  sec.  1798,  ante;  and  see  generally  the  chap- 
ter on  "Sale  by  Auction."  sees.  1792-1798,  ante. 


ARTICLE  II. 

FACTORS. 

§  2367.     Factor,    what. 

§  2368.    Actual  authority  of  factor. 

§  2369.     Ostensible  authority. 

§  2367.  A  factor  is  an  agent,  as  defined  by  sec- 
tion 2026. 

§  2368.  In  addition  to  the  authority  of  agents 
in  general,  a  factor  has  actual  authority  from 
his  principal,  unless  specially  restricted; 

1.  To  insure  property  consigned  to  him  unin- 
sured; 


501  AGENCY.  §  2369-2374 

2.  To  sell,  on  credit,  anything  intrusted  to  him 
for  sale,  except  such  things  as  it  is  contrary  to 
usage  to  sell  on  credit;  but  not  to  pledge,  mort- 
gage, or  barter  the  same;  and, 

3.  To  delegate  his  authority  to  his  partner  or 
servant,  but  not  to  any  person  in  an  independent 
employment. 

See  sec.  2991,  post. 

§  2369.  A  factor  has  ostensible  authority  to 
deal  with  the  property  of  his  principal  as  his  own, 
in  transactions  with  persons  not  having  notice  of 
the  actual  ownership. 


ARTICLE  III. 

SHIPMASTERS    AND    PILOTS. 

§  2373.  Authority  of  shipmaster  on  behalf  of  shipowner. 

§  2374.  Authority   to  borrow. 

§  2375.  Authority  on  behalf  of  owners   of  cargo. 

§  2376.  Power  to  make  contracts. 

§  2377.  Power  to  hypothecate. 

§  2378.  Master's   power   to  sell   ship. 

§  2379.  Master's   power  to   sell   cargo. 

§  2380.  Authority  to  ransom  ship. 

§  2381.  Abandonment  terminates  master's   power, 

§  2382,  Personal     liability     for     contracts     concerning     the 

ship. 

§  2383.  Liability  for   acts   of  persons   employed    upon    the 

ship. 

§  2384.  Responsibility   for   negligence    of   pilot. 

§  2385.  Obligations  of  shipowner  to  owner  of  cargo. 

§  2373.  The  master  of  a  ship  is  a  general  agent 
for  its  owner  in  all  matters  concerning  the  same. 

Note.— This  article  is  chiefly  confined  to  defining 
the  authority  of  ship-masters.  His  duties  wllr  bel 
found  in  sees.  2034-2044,  ante. 

§  2374.  The  master  of  a  ship  has  authority  to 
borrow  money  on  the  credit  of  its  owner,  if  it  is 
necessary  to  enable  him  to  complete  the  voyage. 


§§  2375-237S  AGENCY.  502 

and  if  neither  the  owner  nor  his  proper  agent  for 
such  matters  can  be  consulted  without  injurious 
delay. 

§  2375.  The  master  of  a  ship,  during  a  voyage, 
is  a  general  agent  for  each  of  the  owners  of  the 
cargo,  and  has  authority  to  do  whatever  they 
might  do  for  the  preservation  of  their  respective 
interests,  but  he  cannot  sell  or  hypothecate  the 
cargo,  except  in  the  cases  mentioned  in  this  arti- 
cle. [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  251.    In  effect  July  1,  1874.] 

§  2376.  The  master  of  a  ship  may  procure  all 
its  necessary  repairs  and  supplies,  may  engage 
cargo  and  passengers  for  carriage,  and,  in  a  for- 
eign port,  may  enter  into  a  charter  party;  and  his 
contracts  for  these  purposes  bind  the  owner  to  the 
full  amount  of  the  value  of  the  ship  and  freight- 
age. 

§  2377.  The  master  of  a  ship  may  hypothecate 
the  ship,  freightage,  and  cargo,  and  sell  part  of  the 
cargo,  in  the  cases  prescribed  by  the  chapters  on 
bottomry  and  respondentia,  and  in  no  others,  ex- 
cept that  the  master  may  also  sell  the  cargo  or 
any  part  of  it,  short  of  the  port  of  destination, 
if  found  to  be  of  such  perishable  nature,  or  in 
such  damaged  condition  that,  if  left  on  board  or 
reshipped.  it  would  be  entirely  lost,  or  would  seri- 
ously endanger  the  interests  of  its  owners. 
[Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  252.    In  effect  July  1,  1874.] 

See  sees.  2320,  ante,  and  3017  et  seq. 

§  2378.  When  a  ship,  whether  foreign  or  do- 
mestic, is  seriously  injured,  or  the  voyage  is  other- 
w-ise  broken  up,  beyond  the  possibility  of  pursu- 
ing it,  the  master,  in  case  of  necessity,  may  sell 
the  ship  without  instructions  from  the  owners, 
unless  bv  the  earliest  use  of  ordinary  means  of 


5«J3  AGENCY.  §§  2379-2384 

eommuuicatioii   he   eau   iuforrn    the   owners,   and 
await  their  instructions. 

^  2379.  The  master  of  a  ship  may  sell  the  car- 
^^o,  if  the  voyage  is  broken  up  beyond  the  possi- 
bility of  ptirsiiing-  it,  and  no  other  ship  can  be  ob- 
tained to  carry  it  to  its  destination,  and  the  sale 
is  otherwise  absolutely  necessary. 

Compare  post  sec.  2707. 

§  2380.  The  master  of  a  ship,  in  case  of  its 
capture,  may  engage  to  pay  a  ransom  for  it,  in 
money  or  in  part  of  the  cargo,  and  his  engagement 
Avill  bind  the  ship,  freightage,  and  cargo. 

§  2381.  The  power  of  the  master  of  a  ship  to 
bind  its  owner,  or  the  owners  of  the  cargo,  ceases 
tipon  the  abandonment  of  the  ship  and  freightage 
to  insurers. 

;^  2382.  Unless  otherwise  expressly  agreed,  or 
unless  the  contracting  parties  give  exclusive  credit 
to  the  owner,  the  master  of  a  ship  is  personally  lia- 
ble upon  his  contracts  relative  thereto  even  when 
the  owner  is  also  liable. 

Personal  liability  of  agent:  See  ante.  sec.  2343. 

>j  2383.  The  master  of  a  ship  is  liable  to  third 
persons  for  the  acts  or  negligence  of  persons  em- 
ployed in  its  navigation,  whether  appointed  by 
him  or  not.  to  the  same  extent  as  the  owner  of  the 
ship. 

§  2384.  The  owner  or  master  of  a  ship  is  not 
responsible  for  the  negligence  of  a  pilot  whom  he 
is  bound  by  law  to  employ:  but  if  he  is  allowed  an 
option  between  pilots,  some  of  whom  are  compe- 
tent, or  is  required  only  to  pay  compensation  to  a 
pilot,  whether  he  employs  him  or  not.  he  is  so  re- 
sponsible to  third  persons. 

See  sec.  2338,  ante. 


§§  2385-2389  PARTNERSHIP.  604 

§  2385.  The  owner  of  a  ship  is  bound  to  pay 
to  the  owner  of  her  cargo  the  market  value  at  the 
time  of  arrival  of  the  ship  at  the  port  of  her  des- 
tination, of  that  portion  of  her  cargo  which  has 
been  sold  to  enable  the  master  to  pay  the  neces- 
sary repairs  and  supplies  of  the  ship.  [New  sec- 
tion, approved  March  30,  1874;  Amendments  1873- 
4,  252.    In  effect  July  1,  1874.] 


ARTICLE  IV. 

SHIPS'  MANAGERS. 

§  2388.    What  powers  manager  has. 
§  2389.    What   powers   he  has  not. 

§  2388.  A  ship's  manager  has  power  to  make 
contracts  requisite  for  the  performance  of  his  du- 
ties as  such;  to  enter  into  charter-parties,  or  make 
contracts  for  carriage;  and  to  settle  for  freightage 
and  adjust  averages. 

See  sees.  2070-2072. 

§  2389.  Without  special  authority,  a  ship's 
manager  cannot  borrow  money  or  give  up  the  lien 
for  freightage,  or  purchase  a  cargo,  or  bind  the 
owners  of  the  ship  to  an  insurance. 


TITLE   X. 

PARTNERSHIP. 

Chapter  I.  Partnership  in  General,  §§  2395-2418. 

II.  General  Partnership,  §§  2424-2471. 

III.  Special  Partnership,  §§  2477-2510. 

IV.  Mining  Partnership,  §§  2511-2520. 


505  PARTNERSHIP.  §§  2395-2397 

CHAPTER  I. 

PARTNERSHIP    IN    GENERAL. 

Article  I.  What  Constitutes  a  Partnership,  §§  2395-2397. 

II.  Partnership   Property,    §§   2401-2406. 

HI.  Mutual    Obligations    of    Partners,    §§    2410-2418. 

IV.  Renunciation   of   Partnership,    §§   2417-2418. 

ARTICLE  I. 

WHAT   CONSTITUTES    A   PARTNERSHIP. 

§  2395.     Partnership,  what. 

§  2396.     Shipowners. 

§  2397.     Formation   of   partnership. 

§  2395.  Partnership  is  the  association  of  two 
or  more  persons,  for  the  purpose  of  carrying  on 
business  together,  and  dividing  its  profits  between 
them. 

See  section  2445,  where  the  above  question  as  to 
division  of  profits  evidencing  partnership  is  set- 
tled. 

Dividing  profits  implies  division  of  losses:  Sec. 
2404,  post. 

§  2396.  Part  owners  of  a  ship  do  not,  by  sim- 
ply using  it  in  a  joint  enterprise,  become  partners 
as  to  the  ship. 

§  2397.  A  partnership  can  be  formed  only  by 
the  consent  of  all  the  parties  thereto,  and  there- 
fore, no  new  partner  can  be  admitted  into  a  part- 
nership without  the  consent  of  every  existing 
member  thereof. 

See  sec.  2516,  post. 

Civ.   Code.-43. 


§§  2401-2405  PARTNERSHIP.  ^  506 

AirncLE  II. 

PARTNERSHIP   PROPERTY. 

§  2401.     Partnership  property,    what. 

§  2402.    Partner's  interest  in  partnership  property, 

§  2403.     Partner's   share   in    profits   and   losses. 

§  2.04.    When  division  of  losses  implied. 

§  2405.  Partner  may  require  application  of  partnership 
property   to   payment  of  debts. 

§  2403.  v»  hat  property  is  partnership  property  by  presump- 
tion. 

§  2401.  The  property  of  a  partnership  coiisists 
of  all  that  is  coutribiitecl  to  the  common  stoeli  at 
the  formation  of  the  partnership,  and  all  that  is 
subsequently  acquired  thereby. 

§  2402.  The  interest  of  each  member  of  a  part- 
uersliip  extends  tp  every  portion  of  its  property. 

§  2403.  In  the  absence  of  any  agreement  on 
the  subject,  the  shares  of  partners  in  the  profit  or 
loss  of  the  business  are  equal,  and  the  share  of 
each  in  the  partnership  property  is  the  value  of 
his  original  contribution,  increased  or  diminished 
by  his  share  of  profit  or  loss. 

Mining  partnerships.— Here  each  member  shares 
in  the  profit  and  loss  proportionately  to  the  inter- 
est he  holds:  Sec.  2513,  post. 

§  2404.  An  agreement  to  divide  the  profits  of 
a  business  implies  an  agreement  for  a  correspond- 
ing division  of  its  losses,  unless  it  is  otherwise 
expressly  stipulated. 

§  2405.  Each  member  of  a  partnership  may  re- 
quire its  property  to  be  applied  to  the  discharge  of 
its  debts,  and  has  a  lien  upon  the  shares  of  the 
other  partners  for  this  purpose,  and  for  the  pay- 
ment of  the  general     balance  if  any  due  to  liini. 

See  sees.  262,  263. 


507  PARTNERSHIP.  §§  2406-2413 

?;  2406.  Property,  whether  real  or  personal,  ac- 
quired with  partnership  funds,  is  presumed  to  be 
I>artnership  property. 


ARTICLE  III. 

MUTUAL    OBLIGATION    OF    PARTNERS. 

§  2410.  Partners  trustees  for  each  other. 

§  2411.  Good  faith  to  be  observed  between  them. 

§  2412.  Mutual   liability   of   partners   to   account. 

§  2413.  No   compensation   for  services   to   firm. 

§  2410.  The  relations  of  partners  are  confiden- 
tial. They  are  trustees  for  each  other  within  the 
meaning  of  chapter  I  of  the  Title  on  Trusts,  and 
their  obligations  as  such  trustees  are  deQned  by 
that  chapter. 

§  2411.  In  all  proceedings  connected  with  the 
formation,  conduct,  dissolution,  and  liquidation  of 
a  partnership,  every  partner  is  bound  to  act  in  the 
highest  good  faith  toward  his  copartners.  He 
may  not  obtain  any  advantage  over  them  in  the 
partnership  affairs  by  the  slightest  misrepresen- 
tation, concealment,  threat,  or  adverse  pressure  of 
any  kind. 

See  sec.  2435.  post,  sec.  2406.  ante. 

§  2412.  Each  member  of  a  partnership  must 
account  to  it  for  everything  that  he  receives  on 
account  thereof,  and  is  entitled  to  reimbursement 
therefrom  for  everything  that  he  properly  ex- 
pends for  the  benefit  thereof,  and  to  be  indemni- 
fied thereby  for  all  losses  and  risks  which  he  nec- 
essarily incurs  on  its  behalf. 

Partners'  acts  bind  firm:  Sec.  2429.  post. 

§  2413.  A  partner  is  not  entitled  to  any  compen- 
sation for  services  rendered  by  him  to  the  part- 
nership. 


§§  2-117-2418  PARTNERSHIP.  608 

AKTICLE  IV. 

RENUNCIATION   OF   PARTNERSHIP. 

§  2417.     Renunciation  of  future  profits  exonerates  from  lia- 
bility. 
§  2418.     Effect    of    renunciation. 

§  2417.  A  partner  may  exonerate  himself  from 
all  future  liability  to  a  third  person,  on  account  of 
the  partnership,  by  renouncing,  in  good  faith, 
all  participation  in  its  future  prolits,  and  giving 
notice  to  such  third  person,  and  to  his  own  co- 
partners, that  he  has  made  such  renunciation,  and 
that,  so  far  as  maj^  be  in  his  power,  he  dissolves 
the  partnership  and  does  not  intend  to  be  liable 
on  account  thereof  for  the  future. 

Dissolution  of  partnership:  See  sees.  2449  et 
seq. 

§  2418.  After  a  partner  has  given  notice  of 
his  renunciation  of  the  partnership,  he  cannot 
claim  any  of  its  subsequent  profits,  and  his  co- 
partners may  proceed  to  dissolve  the  partnership. 


CHAPTER  II. 

GENERAL  PARTNERSHIP. 

Article  I.  AVhat  is  a  General  Partnership!^  §  2424. 

II.  Powers  and  Authority  of  Partners.  §§  2428-2431. 

III.  Mutual   Obligations  of  Partners,  §§  2435-2438. 

IV.  Liability   of   Partners,    §§   2442-2445. 

V.    Termination    of    Partnership,    §§   2449-2454. 
VI.     Liquidation.   §§  2458-2432. 
VII.     Of  the  Use  of  Fictitious  Names,  §§  2466-2471. 


f.09  PARTNERSHIP.  §§  2424-2430 

ARTICLE  I. 

WHAT    IS   A    GENERAL    PARTNERSHIP. 
§  2424.     General  partnership    what. 

§  2424.  Every  partnership  that  is  not  formed 
in  accordance  with  the  law  concerning  special  or 
mining-  partnerships,  and  every  special  partnership 
so  lar  only  as  the  general  partners  are  concerned, 
is  a  general  partnership. 

Special  partnerships:  See  sees.  24T7-.2510,  post. 

Mining  partnerships:  See  sees.  2511-2520,  post. 

ARTICLE  II. 

POWERS   AND  AUTHORITY   OF   PARTNERS. 

§  2428.  Power  of  majority  of  partners. 

§  2429.  Authority  of  individual  partner. 

§  2430.  What   authority   partner   has   not. 

§  2431.  Partner's  acts  in  bad  faith,  when  ineffectual. 

§  2428.  Unless  otherwise  expressly  stipulated, 
the  decision  of  the  majority  of  the  members  of  a 
general  partnership  binds  it  in  the  conduct  of  its 
lousiness. 

Mining  partnerships:  Sec.  2520,  post. 

§  2429.  Every  general  partner  is  agent  for  the 
partnership  in  the  transaction  of  its  business,  and 
has  authority  to  do  whatever  is  necessary  to  carry 
on  such  business  in  the  ordinary  manner,  and  for 
this  purpose  may  bind  his  copartners  by  an  agree- 
ment in  writing. 

Common  liability  for  losses:  See  sec.  2412. 

§  2430.  A  partner,  as  such,  has  not  authority 
to  do  any  of  the  following  acts,  unless  his  copart- 


§§  2431-243G  PARTNERSHIP.  510 

ners  have  wholly  abaudoued  the  business  to  hiui, 
or  are  incapable  of  acting: 

1.  To  malce  an  assignment  of  the  partnership 
property  or  any  portion  thereof  to  a  creditor,  or  to 
a  third  person  in  trust  for  tlie  beuelit  of  a  creditor 
or  of  all  creditors; 

2.  To  dispose  of  the  goodwill  of  the  business; 

3.  To  dispose  of  the  whole  of  the  partnership 
property  at  once,  unless  it  consists  entirely  of 
merchandise; 

4.  To  do  any  act  which  would  make  it  impossi- 
ble to  carry  on  the  ordinary  business  of  the  part- 
nership; 

5.  To  confess  a  judgment; 

6.  To  submit  a  partnership  claim  to  arbitration; 

7.  To  do  any  other  act  not  within  the  scope  of 
I  ho  preceding  section. 

Subd.  7.    Want  of  authority  in  general. 
See  sec.  242!).  ante. 

>5  2431.  A  partn(>r  is  not  bound  by  any  act  of 
a  copnrtner  in  bad  faith  towaid  him,  though  with- 
in the  scope  of  the  partner's  powers,  except  in 
favor  of  i)ersons  who  have  in  good  faith  parted 
with  value  in  reliance  upon  such  act. 

Good  faith,  duty  to  observe:  See  sec.  2111,  ante, 
sec.  2403,  ante. 

ARTICLE  III. 

MUTUAL    OBLIGATIONS    OF    PARTNERS. 

§  2435,  Profits  of  individual  partner. 

§  2436.  In  what  business  partner  may  not  engage. 

§  2437,  In  what  he  may  engage. 

§  2438.  Must  account  to  firm  for  profits. 

§  2435.  All  profits  made  by  a  general  partner, 
in  the  course  of  any  business  usually  carried  on 
by  the  partnership,  belong  to  the  firm. 

§  2436.    A  general  partner,  who  agrees  to  give 


5U  PARTNERSHIP.  §§  2437-2414 

Uis  personal  atteutiou  to  the  business  of  the  pnrt- 
uersliip,  may  not  engage  in  any  business  which 
gives  liim  an  interest  adverse  to  that  of  tlie  part- 
nership, or  which  prevents  liim  from  giving  to 
such  business  all  the  attention  which  would  be 
advantageous  to  it. 
See  sec.  2438,  post. 

§  2437.  A  partner  may  engage  in  any  separate 
business,  except  as  otherwise  provided  by  the  last 
two  sections. 

§  2438.  A  general  partner  transacting  business 
contrary  to  the  provisions  of  this  article  may  be 
required  by  any  copartner  to  account  to  the  part- 
nership for  the  profits  of  such  business. 


ARTICLE  IV. 

LIABILITY    OP    PARTNERS. 

§  2442.  Liability  of  partners  to  third  persons. 

§  2443.  Liability   for  each   other's  acts  as  agents. 

§  2444.  Liability   of   one    held    out   as   partner. 

if  2445.  No  one  liable  as  partner  unless  held  out  as  such. 

§  2442.  Every  general  partner  is  liable  to  third 
persons  for  all  the  obligations  of  the  partnership, 
jointly  with  his  copartners. 

§  2443.  The  liability  of  general  partners  for 
(^ach  other's  acts  is  defined  by  the  Title  on  Agen- 
cy. 

See  sees.  2429,  2430,  ante. 

§  2444.  Any  one  permitting  himself  to  be  rep- 
resented as  a  partner,  general  or  special,  is  liable, 
as  such  to  third  persons  to  whom  such  represen- 
tation is  communicated,  and  who,  on  the  faith 
thereof,  give  credit  to  the  partnership. 


§§  2445-2451  PARTNERSHIP.  612 

§  2445.  No  one  is  liable  as  a  partner  who  is  not 
HUL-ii  in  fact,  except  as  provided  in  the  last  sec- 
tion. 


ARTICLE  y. 

TERMINATION  OF  PARTNERSHIP. 

§  2449.  Duration  of  partnership. 

§  2450.  Total  dissolution  of  partnership. 

§  2451.  Partial  dissolution. 

§  2452.  Partner   entitled   to   dissolution. 

§  2453.  Notice   of   termination. 

§  2454.  Notice  by  change  of  name. 

§  2449.  If  no  term  is  prescribed  by  agreement 
for  its  duration,  a  general  partnership  continues 
until  dissolved  by  a  partner  or  by  operation  of 
law. 

Dissolution  of  special  partnership:  See  sec.  2509, 
post. 

§  2450.  A  general  partnership  is  dissolved  as  to 
nil  the  partners: 

1.  By  lapse  of  the  time  prescribed  by  agree- 
ment for  its  duration; 

2.  By  the  expressed  will  of  any  partner,  if 
there  is  no  such  agreement; 

3.  By  the  death  of  a  partner; 

4.  By  tlie  transfer  to  a  person,  not  a  partner, 
of  the  interest  of  any  partner  in  the  partnership 
property; 

5.  By  war,  or  the  prohibition  of  commercial  in- 
ter'course  between  the  country  in  which  one  part- 
ner resides  and  that  in  which  another  resides;  or, 

6.  By  a  judgment  of  dissolution. 

Partner's  power  after  dissolution  of  firm:  See 
sees.  2458  et  seq.,  post. 

§  2451.  A  general  partnership  may  be  dis- 
solved, as  to  himself  only,  by  the  expressed  will 
of   any   partner,    notwithstanding    his    agreement 


513  PARTNERSHIP.  §§  2452-2454 

for  its  continuance,  subject,  however,  to  liability 
to  bis  copartners  for  any  damage  caused  to  them 
thereby,  unless  the  circumstances  are  such  as  en- 
title him  to  a  judgment  of  dissolution. 

§  2452.  A  general  partner  is  entitled  to  a  judg- 
ment of  dissolution: 

1.  When  he,  or  another  partner,  becomes  le- 
gally incapable  of  contracting; 

2.  Wlien  another  partner  fails  to  perform  his 
duties  under  the  agreement  of  partnership,  or  is 
guilty  of  serious  misconduct;  or, 

3.  When  the  busines  of  the  partnership  can  be 
carried  on  only  at  a  permanent  loss. 

§  2453.  The  liability  of  a  general  partner  for 
the  acts  of  his  copartners  continues,  even  after  a 
dissolution  of  the  copartnership,  in  favor  of  per- 
sons who  have  had  dealings  with  and  given  credit 
to  the  partnership  during  its  existence,  until  they 
have  had  personal  notice  of  the  dissolution;  and 
in  favor  of  other  persons  until  such  dissolution 
has  been  advertised  in  a  newspaper  published  in 
every  county  where  the  partnership,  at  the  time 
of  its  dissolution,  had  a  place  of  business,  if  a 
newspaper  is  there  published,  to  the  extent  in 
either  case  to  which  such  persons  part  with  val- 
ue in  good  faith,  and  in  the  belief  that  such  part- 
ner is  still  a  member  of  the  firm. 

Compare  sec.  2509,  post,  where  "by  act  of  the 
partners"  is  the  qualifying  phrase  used. 

§  2454,  A  change  of  the  partnership  name, 
which  plainly  indicates  the  withdrawal  of  a  part- 
ner is  sufficient  notice  of  the  fact  of  such  with- 
drawal to  all  persons  to  whom  it  is  communicated; 
but  a  change  in  the  name,  which  does  not  con- 
tain such  an  indication  is  not  notice  of  the  wiiu- 
drawal  of  any  partner. 


|§  2458-2462  PARTNERSHIP.  514 

ARTICLE  VI. 

LIQUIDATION. 

§  2458.  Powers  of  partners  after  dissolution. 

§  2459.  Who  may  act   in    liquidation. 

§  24C0.  Who  may  not  act  in  liquidation. 

§  2461.  Powers  of  partners  in  liquidation. 

{  2462.  What  partner  may  do  in  liquidation. 

§  2458.  After  the  dissolution  of  a  partner- 
ship, the  powers  and  authority  of  the  partners  are 
such  only  as  are  prescribed  by  this  article. 

§  2459.  Any  member  of  a  general  partnership 
may  act  in  liquidation  of  its  affairs,  except  as  pro- 
vided by  the  next  section. 

§  2460.  If  the  liquidation  of  a  partnership  is 
committed,  by  consent  of  all  the  partners,  to  one 
or  more  of  them,  the  others  have  no  right  to  act 
therein;  but  their  acts  are  valid  in  favor  of  per- 
sons parting  witli  value,  in  good  faith,  upon  credit 
thereof. 

§  2461.  A  partner  authorized  to  act  in  liquida- 
tion may  collect,  compromise,  or  release  any  debts 
due  to  the  partnership,  pay  or  compromise  any 
claims  against  it,  and  dispose  of  the  partnership 
property. 

§  2462.  A  partner  authorized  to  act  in  liquida- 
lion  may  indorse,  in  the  name  of  the  firm,  promis- 
sory- notes,  or  other  obligations  held  by  the  part- 
nership, for  the  purpose  of  collecting  the  same, 
but  he  cannot  create  any  new  obligation  in  its 
name,  or  revive  a  debt  against  the  firm,  by  an 
acknowledgment  when  an  action  thereon  is  bar- 
red under  the  provisions  of  the  Code  of  Civil  Pro- 
cedure. [Amendment,  approved  March  30,  1874: 
•Vraendments  1873-4,  252.    In  effect  July  1.  1874.] 


515  PARTNERSHIP.  §§  2466-2468 

ARTICLE  VII. 

OF  THE   USE    OF   FICTITIOUS    NAMES. 

j  2466.  Fictitious  name, 

j  2467.  Style   of   foreign   partnership. 

^  246S.  Certificate,  when  to  be  filed. 

§  2463.  New  certificates  on  change  of  partner. 

§  2470.  Register  of  such  firms  to  be  kept  by  county  clerk. 

§  2471.  Certified    copies    of    register,    and    proof    of    publi- 
cation,   to  be  evidence. 

§  2466.  Except  as  otherwise  provided  in  the 
next  section  every  partnership  transacting  busi- 
ness in  this  State  under  a  fictitious  name,  or  a 
designation  not  showing  the  names  of  the  persons 
interested  as  partners  in  such  business,  must  file 
with  the  clerk  of  the  county  in  which  its  principal 
place  of  business  is  situated  a  certificate  stating 
the  names  in  full  of  all  the  members  of  such  part- 
nership and  their  places  of  residence,  and  publish 
the  same  once  a  week,  for  four  successive  weeks, 
in  a  new.spaper  publii^hed  in  the  county,  if  there  be 
one,  and  if  there  be  none  in  such  county,  then  in 
a  newspaper  published  in  an  adjoining  county. 
[Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-74,  253.    In  effect  July  1,  1874.] 

§  2467.  A  commercial  or  banking  partnership, 
established  and  transacting  business  in  a  place 
without  the  United  States,  may,  without  filing  the 
certificate,  or  making  the  publication  prescribed 
in  the  last  section,  use  in  this  State  the  partner- 
ship name  used  by  it  there,  although  it  be  ficti- 
tious, or  do  not  show  the  names  of  the  persons  in- 
terested as  partners  in  such  business.  [Amend- 
ment approved  March  30.  1874;  Amendments  1873- 
74.  253.    In  effect  July  1.  1874.] 

§  2468.  The  certificate  filed  with  the  clerk,  as 
provided  in  section  twentv-four  hundred  and  six- 


5§  2469,  2470  PARTNERSHIP.  51«> 

ty-six,  must  be  signed  by  the  partners,  and  ac- 
knowledged before  some  officer  authorized  to  take 
the  acknowledgment  of  conveyances  of  real  prop- 
erty. Where  the  partnership  is  hereafter  formed, 
the  certificate  must  be  filed,  and  the  publication 
designated  in  that  section  must  be  made  within 
one  month  after  the  formation  of  the  partnership, 
or  within  one  month  from  the  time  designated  in 
the  agreement  of  its  members  for  the  commence- 
ment of  the  partntrsliip:  where  the  partnership  has 
been  heretofore  formed,  the  certificate  must  be 
filed,  and  the  publication  made  witliin  six  months 
after  the  passage  of  this  act.  Persons  doing  business 
as  i^artners  contrary  to  the  provisions  of  this  arti- 
cle shall  not  maintain  any  action  upon  or  on  ac- 
count of  any  contracts  made  or  transactions  had 
in  their  partnersliip  name,  in  any  court  of  this 
State,  until  th(\v  have  first  filed  the  certificate  and 
made  the  publication  herein  required.  [Amend- 
ment, approved  March  30.  1874;  Amendments 
1873-74,  2.j3.    In  effect  July  1,  1874.] 

§  2469.  On  every  change  in  the  members  of  a 
partnership  transacting  business  in  this  State  un- 
f'er  a  fictitious  name,  or  a  designation  which  does 
not  sh<nv  the  names  of  the  persons  interested  as 
partners  in  its  business,  except  in  the  cases  men- 
tioned in  section  twenty-four  hundred  and  sixty- 
seven,  a  new  certificate  must  be  filed  with  the 
county  clerk,  and  a  new  publication  made,  as  re- 
quired by  this  article  on  the  formation  of  such 
partnership.  [Amendment,  approved  March  30. 
1874;  Amendments  1873-74,  254.  In  effect  July  1. 
1874.] 

§  2470.  Every  county  clerk  must  keep  a  regis- 
ter  of  the  names  of  firms  and  persons  mentioned 
in  the  certificates  filed  with  him,  pursuant  to  this 
article,  entering  in  alphabetical  order  the  name 
of  every  such  partnership,   and   of  each  partner 


517  PARTNERSHIP.  §§  2471-2478 

therein.     [Amendment,  approved  March  30,  1874; 
Amendments  1873-74,  254.    In  effect  July  1,  1874.] 

§  2471.  Copies  of  the  entries  of  a  county  clerk, 
as  herein  directed,  ^vhen  certified  by  him,  and  affi- 
davits of  publication,  as  herein  directed,  made  by 
the  printer,  publisher,  or  chief  clerk  of  a  newspa- 
per, are  presumptive  evidence  of  the  facts  therein, 
stated. 

CHAPTER  III. 

SPECIAL   PARTNERSHIP. 

Article  I.     Formation  of  Partnership,   §§  2477-2485. 

II.    Powers,     Rights,    and    Duties  of    the    Partnert, 
§§   24S9-2493. 
III.     Liability  of  Partners,   §§  2500-2503. 
IV.    Alteration   and   Dissolution   of  the   Partnership, 
§§    2507-2510. 


ARTICLE  I. 

FORMATION    OF    PARTNERSHIP. 

§  2477.  Formation  of  special  partnership. 

§  2478.  Of  what  to  consist. 

§  2479.  Certified   statement. 

§  2480.  Acknowledged  and  recorded.     False  statement. 

§  2481.  Affidavit  as  to  sums  contributed. 

§  2482.  No  partnership  until  compliance. 

§  2483.  Certificate  to  be  published. 

§  2484.  Affidavit  of  publication  filed. 

5  2485.  Renewal   of  special  partnership. 

§  2477.  A  special  partnership  may  be  formed' 
by  t"wo  or  more  persons  in  the  manner  and  with 
Tlie  effect  prescribed  in  this  chapter,  for  the  trans- 
action of  any  business  except  banking  or  insur- 
;ince. 

Fraud  in  partnership  matters.  Penal  Code,  sec. 
358. 

§  2478.    A  special  partnership  may  consist  of 

Civ.   Code.— 44. 


g§  2479-2481  PARTNERSHIP.  518 

one  or  more  persons  called  general  partners,  and 
one  or  more  persons  called  special  partners. 

§  2479.  Persons  desirous  of  forming  a  special 
partuersliip  must  severally  sign  a  certificate,  stat- 
i  nf: : 

1.  The  name  under  which  the  partuership  is  to 
be  conducted; 

2.  The  general  nature  of  the  business  intended 
to  be  transacted; 

8.  The  names  of  all  the  partners,  and  ilieir  res- 
idences, specifying  which  are  general  and  which 
are  special  partners; 

4.  The  amount  of  capital  which  each  special 
partner  has  contributed  to  the  common  stock; 

5.  The  periods  at  whicli  such  partnership  will 


§  2480.  Certificates  under  the  last  section  must 
ne  acknowledged  by  all  the  partners,  before  some 
officer  authorized  to  take  acknowledgment  of 
deeds,  one  to  be  filed  in  the  clerk's  oflice,  and 
the  other  recorded  in  the  office  of  the  recorder 
of  the  county  in  which  the  principal  place  of 
business  of  the  partnership  is  situated,  in  a  book 
to  be  kept  for  that  purpose,  open  to  public  in- 
spection: and  if  the  partnership  has  places 
of  business  situated  in  different  counties,  a 
copy  of  the  certificate  certified  by  the  recorder 
in  whose  office  it  is  recorded,  must  be  filed  in  the 
clerk's  office,  and  recorded  in  like  manner  in  the 
office  of  the  recorder  in  every  such  county.  If  any 
false  statement  is  made  in  any  such  certificate, 
all  the  persons  interested  in  the  partnership  are 
liable,  as  general  partners,  for  all  the  engage- 
ments thereof. 

§  2481.  An  affidavit  of  each  of  the  partners, 
stating  tliat  the  sums  specified  in  the  certificate 
of    the    ]):irtnersliii)    as    having   been    contributed 


519  PARTNERSHIP.  §§  2482-2485 

by  each  of  the  special  partners,  have  been  actu- 
ally and  in  good  faith  paid,  in  the  lawful  money 
of  the  United  States,  must  be  filed  in  the  same  of- 
fice with  the  original  certificate. 

§  2482.  No  special  partnership  is  formed  until 
the  provisions  of  the  last  five  sections  are  com- 
plied with. 

§  2483.  The  certificate  mentioned  in  this  arti- 
cle, or  a  statement  of  its  substance,  must  be  pub- 
lished in  a  newspaper  printed  in  the  county  where 
the  original  certificate  is  filed,  and  if  no  newspa- 
per is  there  printed,  then  in  a  newspaper 
in  the  State  nearest  thereto.  Such  publica- 
tion must  be  made  once  a  weeli  for  four  successive 
weeks,  beginning  within  one  week  from  the  time 
of  filing  the  certificate.  In  case  such  publication  is 
not  so  made,  the  partnership  must  be  deemed  gen- 
eral. 

§  2484.  An  affidavit  of  the  making  of  the  pub- 
lication mentioned  in  the  preceding  section,  made 
by  the  printer,  publisher,  or  chief  clerk  of  the 
newspaper  in  which  such  publication  is  made, 
may  be  filed  with  the  county  recorder  with  whom 
the  original  certificate  was  filed,  and  is  presump- 
tive evidence  of  the  facts  therein  stated. 

§  2485.  Every  renewal  or  continuance  of  a  spe- 
cial partnership  must  be  certified,  recorded,  veri- 
fied, and  published  in  the  same  manner  as  upon 
its  original  formation. 

Compare  with  sec.  2r)07.  post. 


§§  24S9-2493  PARTNERSHIP.  520 

AirncLE  II. 

POWERS,  RIGHTS,  AND  DUTIES  OF  THE  PARTNERS. 

9  2489.  Who  to  do  business. 

§  2490.  Special  partuers  may  advise. 

S  2491.  May  loan  money.     Insolvency. 

S  2492.  General  partners  may  sue  and   be   sued. 

§  2493.  Withdrawal  of  capital. 

§  2494.  Interest   and   profits. 

§  2495.  Result  of  withdrawing  capital. 

I  2496.  Preferential  transfer  void. 

§  2489.  The  jreueral  partuers  only  have  author- 
ity to  trausact  the  business  of  a  special  partner- 
ship. 

Stats.  1870,  124,  sec.  10. 

§  2490.  A  special  partner  may  at  all  times  in- 
vestij;ate  the  partnership  affairs,  and  advise  his 
partners,  or  their  agents,  as  to  their  management. 

§  2491.  A  special  partner  may  lend  money  to 
the  partnersliip,  or  advance  money  for  it,  and  talce 
t  rom  it  security  therefor,  and  as  to  such  loans  or 
advances  has  the  same  rights  as  any  other  cred- 
itor; but  in  case  of  the  insolvency  of  the  partner- 
ship, all  other  claims  which  he  may  have  against 
it  must  be  postponed  until  all  other  creditors  are 
satisfied. 

§  2492.  In  all  matters  relating  to  a  special 
partnership,  its  general  partners  may  sue  and  b« 
sued  alone,  in  the  same  manner  as  if  there  were 
no  special  partners. 

§  2493.  No  special  partner,  under  any  pre- 
tense, may  withdraw  any  part  of  the  capital  in- 
vested by  him  in  the  partnersliip,  during  its  con- 
tinuance. 


See  sec.  2495,  post. 


521  PARTNERSHIP.  §§  2494-2501 

§  2494.  A  special  partner  may  receive  such 
lawful  interest  and  such  proportion  of  profits  as 
may  he  agreed  upon,  if  not  paid  out  of  the 
capital  invested  in  the  partnership  by  him,  or  by 
some  other  special  partner,  and  is  not  bound  to  re- 
fund the  same  to  meet  subsequent  losses. 

§  2495.  If  a  special  partner  withdraws  capital 
from  the  firm,  contrary  to  the  provisions  of  this 
article,  he  thereby  becomes  a  general  partner. 

See  sec.  2493. 

§  2496.  Every  transfer  of  the  property  of  a 
special  partnership,  or  of  a  partner  therein,  made 
after  or  in  contemplation  of  the  insolvency  of 
such  partnership  or  partner,  with  intent  to  give 
a  preference  to  any  creditor  of  such  partnership 
or  partner  over  any  other  creditor  of  such  part- 
nership, is  void  against  tlie  creditors  thereof;  and 
every  judgment  confessed,  lien  created,  or  secur- 
ity given,  in  like  manner  and  with  the  lilie  intent, 
is  in  lilie  manner  void. 


ARTICLE  III. 

LIABILITY  OF  PARTNERS. 

§  2500.     Liability  of  partners. 
§  2501.     Of  special   partners. 
§  2502.     L^:abi.ity  for   unintentional   act. 

§  2503.    Who   may   question   existence     of     special   partner- 
ship. 

§  2500.  The  general  partners  in  a  special  part- 
nership are  liable  to  the  same  extent  as  partners 
in  a  general  partnership. 

§  2501.  The  contribution  of  a  special  partner 
to  the  capital  of  the  firm,  and  the  increase  there- 
of, is  liable  for  its  debts,  but  he  is  not  otherwise 
liable  therefor,  excout  as  follows: 


§§  2502,  2503  PARTNERSHIP.  522 

1.  If  he  has  willfully  made  or  permitted  a  false 
ou  materially  defective  statement  iu  the  certificate 
of  the  partnership,  the  atiidavit  filed  therewith,  or 
the  published  anuouucemeut  thereof,  he  is  liable 
as  a  general  partner,  to  all  creditors  of  the  firm; 

2.  If  hie  has  willfully  interfered  with  the  busi- 
ness of  the  firm,  except  as  permitted  in  article  II 
of  this  chapter,  he  is  liable  in  like  manner;  or 

3.  If  he  has  willfully  joined  in  or  assented  to  an 
act  contrary  to  any  of  the  provisions  of  article  II 
of  this  chapter,  he  is  liable  in  like  manner. 

False  certificate:  See  sees.  24S0  and  2482,  ant. 

§  2502.  When  a  special  partner  has  uninten- 
tionally done  any  of  the  acts  mentioned  in  the  last 
section,  he  is  liable,  as  a  general  partner,  to  any 
creditor  of  the  firm  who  has  been  actually  misled 
thereby  to  his  prejudice. 

§  2503.  One  who,  upon  making  a  contract  with 
a  partnership,  accepts  from  or  gives  to  it  a  written 
memorandum  of  the  contract,  stating  that  the 
partnership  is  special,  and  giving  the  names  of 
the  special  partners,  cannot  afterward  charge  the 
persons  thus  named  as  general  partners  upon  that 
contract,  by  reason  of  an  error  or  defect  in  the 
proceedings  for  the  creation  of  the  special  partner- 
ship, prior  to  the  acceptance  of  the  memorandum. 
If  an  effort  has  been  made  by  the  partners,  in  good 
faith,  to  form  a  special  partnership  in  the  manner 
required  by  article  I  of  this  chapter. 


AIITICLE  lY. 

ALTii^RATION    AND    DISSOLUTION. 

§  2507.  When   special   partnership  becomes   general. 

§  2508.  How  new  special   partners  may  be  admitted. 

§  2509.  Dissolution  of  special   partnerships.     Notice. 

§  2510.  The  name  of  a  special  partner  not  used,  unle 


523  PARTNERSHIP.  §§  2507-2510 

§  2507.  A  special  partnership  becomes  general 
if,  within  ten  days  after  any  partner  withdraws 
from  it,  or  any  new  partner  is  received  into  it,  or  a 
change  is  made  in  the  n  itureof  its  business  or  in  its 
name,  a  certificate  of  such  fact,  duly  verified  and 
signed  by  one  or  more  of  the  partners,  is  not  filed 
with  the  county  clerli  and  recorder  with  whom  the 
original  certificate  of  the  partnership  was  filed, 
and  notice  thereof  published  as  is  provided  in 
article  I  of  this  chapter  for  the  publication  of  the 
certificate. 

§  2508.  New  special  partners  may  be  admit- 
ted into  a  special  partnership  upon  a  certificate, 
stating  the  names,  residences,  and  contributions 
to  the  common  stocli  of  each  of  such  partners, 
signed  by  each  of  them,  and  by  the  general  part- 
ners verified,  acknowledged,  or  proved,  according 
to  the  provisions  of  Article  I  of  this  chapter,  and 
filed  with  the  county  clerk  and  recorder  with 
whom  the  original  certificate  of  the  partnership 
was  filed. 

§  2509.  A  special  partnership  is  subject  to  dis- 
solution in  the  same  manner  as  a  general  partner- 
ship, except  that  no  dissolution,  by  the  act  of  the 
partners,  is  complete  until  a  notice  thereof  has 
been  filed  and  recorded  in  the  ofiice  of  the  county 
clerk  and  recorder  with  whom  the  original  certifi- 
cate was  recorded,  and  published  once  in  each 
week,  for  four  successive  weeks,  in  a  newspaper 
printed  in  each  county  where  the  partnership  has 
a  place  of  business. 

Dissolution  of  general  partnership:  See  sees. 
2450,  ante,  et  seq. 

§  2510.  The  name  of  a  special  partner  must 
not  be  used  in  the  firm  name  of  partnership,  un- 
less it  be  accompanied  with  the  word  "limited." 


g§  2511-2514  PARTNERSHIP.  524 

CHAPTER  lY. 

MINING    PARTNERSHIPS. 

§  2511.  Wheu  a  mining  partnership  exists. 

§  2512.  Express   agreement  not  necessary   to   constitute. 

§  2513.  Profits  and   losses,   how  shared. 

S  2514.  Lien  of  partners. 

§  2515.  Mine— Partnership  property. 

§  2613.  Partnersuip  not  dissolved  by  sale  of  interest. 

§  2517.  Purchaser  takes,  subject  to  liens,   unless,   &c. 

§  2518.  Takes  with  notice  of  lien,  when. 

§  2519.  Contract  in  writing,  when  binding. 

§  2520.  Owners  of  majority  of  shares  govern. 

§  2511.  A  mining  partnership  exists  when  two 
or  more  persons  who  own  or  acquire  a  mining 
claim  for  the  purpose  of  working  it  and  extracting 
the  mineral  therefrom  actually  engage  in  working 
the  same. 

§  2512.  An  express  agreement  to  become  part- 
ners or  to  share  the  profits  and  losses  of  mining  is 
not  necessary  to  the  formation  or  existence  of  a 
mining  partnership.  The  relation  arises  from  the 
ownership  of  shares  or  interests  in  the  mine  and 
working  the  same  for  the  purpose  of  extracting 
the  minerals  therefrom. 

§  2513.  A  member  of  a  mining  partnership 
shares  in  the  profits  and  losses  thereof  in  the  pro- 
portion which  the  interest  or  share  he  owns  in  the 
mine  bears  to  the  whole  partnership  capital  or 
whole  number  of  shares. 

§  2514.  Each  member  of  a  mining  partnership 
has  a  lien  on  the  partnership  property  for  the 
debts  due  the  creditors  thereof,  and  for  money 
advanced  by  him*  for  its  use.  This  lien  exists  not- 
withstanding there  is  an  agreement  among  the 
partners  that  it  must  not. 

Corresponding  sections  as  to  general  partners: 


525  PARTNERSHIP.  §§2515-2520 

See  sees.  2405,  2412,  ante;  see  also  sees.  2517,  2518, 
post. 

§  2515.  The  mining  ground  owned  and  worked 
by  partners  in  mining,  whether  purchased  with 
partnership  funds  or  not,  is  partnership  property. 

§  2516.  One  of  the  partners  in  a  mining  part- 
nership may  convey  his  interest  in  the  mine  and 
business  without  dissolving  the  partnership.  The 
purchaser,  from  the  date  of  his  purchase,  becomes 
a  member  of  the  partnership. 

Termination  of  partnership  generally:  See  sees. 
2449  et  seq. 

§  2517.  A  purchaser  of  an  interest  in  the  min- 
ing ground  of  a  mining  partnership  takes  it  sub- 
ject to  the  liens  existing  in  favor  of  the  partners 
for  debts  due  all  creditors  thereof,  or  advances 
made  for  the  benefit  of  the  partnership,  unless  he 
purchased  in  good  faith,  for  a  valuable  consider- 
ation, without  notice  of  such  lien, 

§  2518.  A  purchaser  of  the  interest  of  a  part- 
ner in  a  mine  when  the  partnership  is  engaged  in 
working  it.  takes  with  notice  of  all  liens  resulting 
from  the  relation  of  the  partners  to  each  other 
and  to  the  creditors  of  the  partnership. 

§  2519.  No  member  of  a  mining  partnership  or 
other  agent  or  manager  thereof  can,  by  a  contract 
in  writing,  bind  the  partnership,  except  by  ex- 
press authority  derived  from  the  members  there- 
of, 

§  2520.  The  decision  of  the  members  owning 
a  majority  of  the  shares  or  interests  in  a  mining 
partnership  binds  it  in  the  conduct  of  its  business. 

Majority  of  members  in  general  partnerships: 
Sec.  2428,  ante. 


§  2527 


INSURANCE. 


525- 


TITLE  XI. 

INSURANCE. 

Chapter  I.  Insurance  in  General,   §§  2527-2649. 

II.  Marine  Insurance,   §§  2G55-2746. 

III.  Fire  Insurance,  §§  2752-275G. 

IV.  Life  and  Health  Insurance,   §§  2762- 

2766. 


CHAPTER  I. 


INSURANCE  IN  GENERAL. 

Article  I.  Definition   of  Insurance,    §   2527. 

II.  \vhat  may  be  Insured,  §§  2531-2534. 

III.  Parties,    §§   253S-2542. 

IV.  Insurable  Interest,   §§  2546-2558. 
V.  Concealment   and   Representation, 

VI.  The  Policy,   §§  2586-2599. 

VII.  Warranties,    §§  2603-2612. 

VIII.  Premiums,  §§  2616-2622. 

IX.  Loss,    ■§§    2626-2629. 

X.  Notice    of    Loss,    §§   2633-2637. 

XI.  Double  Insurance,   §§  2641-2642. 

XII.  Reinsurance,  §§  2646-2649. 


5§    2561-2583. 


ARTICLE  I. 
DEFINITION    OF   INSURANCE. 

§  2527.     Insurance,  what. 

§  2527.  Insurance  is  a  contract  whereby  one 
undertalies  to  indemnity  another  against  loss. 
damage,  or  liability,  arising  from  an  unknown 
or  contingent  event. 

Insurance  corporations:  See  sees.  414,  et  seq. 

Otfice  and   duties   of  insurance   commissioners: 


527  INSURANCE.  §§  2531-2534 

Polit.  Code,  sees.  594-631.  Destruction  of  insured 
property:  Penal  Code,  sec.  548;  Arson:  Penal 
Code,  sees.  447-451. 


ARTICLE  II. 

WHAT  MAY  BE  INSURED. 

§  2531.  What  events  may  be  insured  against. 

§  2532.  Insurance  of  lottery  or  lottery  prize  unauthorized. 

§  2.:^3.  Usual  kinds  of  insurance. 

§  2534.  All  subject  to  this  chapter. 

§  2531.  Any  contingent  or  unknown  event, 
whether  past  or  future,  whicli  may  damnify  a  per- 
son having  an  insurable  interest,  or  create  a  liabil- 
ity against  him,  may  be  insured  against,  subject 
to  the  provisions  of  this  chapter. 

Insurable  interest:  See  sees.  2546,  post,  et  seq. 

§  2532.  The  preceding  section  does  not  author- 
ize an  insurance  for  or  against  the  drawing  of  any 
lottery,  or  for  or  against  any  chance  or  ticket  in 
a  lottery  drawing  a  prize. 

Lotteries:  Penal  Code,  sees.  324,  326. 

§  2533.    The  most  usual  kinds  of  insurance  are: 

1.  Marine  insurance; 

2.  Fire  insurance; 

3.  Life  insurance; 

4.  Health  insurance;  and, 

5.  Accident  insurance. 

Marine  insurance:  See  post,  sees.  2655,  et  seq. 
Fire  insurance:  See  post,  sees.  2752,  et  seq. 
Life  and  healtli  insurance:  See  post,  sees.  2762, 
et   seq. 

§  2534.  All  kinds  of  insurance  are  subject  to 
the  provisions  of  this  chapter. 


§§  2538-2542  INSURANCE.  528 

ARTICLE  III. 

PARTIES    TO    THE    CONTRACT. 

§  2538.  Designation  of  parties. 

§  2539.  Who  may  insure. 

§  2540.  Who  may  be  insured. 

§  2541.  Assignment  to  mortgagee  of  thing  insured. 

§  2542.  New   contract   between   insurer  and  assignee. 

§  2538.  The  person  who  undertakes  to  indem- 
nify another  by  a  contract  of  insurance  is  called 
the  insurer,  and  the  person  indemnified  is  called 
the  insured. 

§  2539.  Any  one  capable  of  making  a  contract 
may  be  an  insurer,  subject  to  the  restrictions  im- 
posed by  special  statutes  upon  foreign  corpora- 
tions,  nonresidents,   and  others. 

§  2540.  Any  one  except  a  public  enemy  may 
be  insured. 

§  2541.  Where  a  mortgagor  of  property  effects 
insurance  in  his  own  name,  providing  that  the  loss 
shall  be  payable  to  the  mortgagee,  or  assigns  a  pol- 
icy of  insurance  to  the  mortgagee,  the  insurance 
is  deemed  to  be  upon  the  interest  of  the  mortgag- 
or, who  does  not  cease  to  be  a  party  to  the  origi- 
nal contract,  and  any  act  of  his  which  would  other- 
wise avoid  the  insurance  will  have  the  same  ef- 
fect, although  the  property  is  in  the  hands  of  the 
mortgagee. 

§  2542.  If  an  insurer  assents  to  the  transfer  of 
an  insurance  from  a  mortgagor  to  a  mortgagee, 
and,  at  the  time  of  his  assent,  imposes  further  ob- 
ligations on  the  assignee,  making  a  new  contract 
with  him,  the  acts  of  the  mortgagor  cannot  af 
foct  his  rights. 


62y  INSURANCE.  §§  2546-2548 

ARTICLE  IV. 

INSURABLE    INTEREST. 

§  2546.  Insurable   interest,    what. 

§  2547.  In  what  may  consist. 

§  2548.  Interest  of  carrier  or  depositary. 

§  2549.  Mere   expectancies. 

§  2550.  Measure   of   interest   in   property. 

§  2551.  Insurance  without  interest,   illegal. 

§  2552.  When  interest  must  exist. 

§  25.S3.  Effect  of  transfer. 

§  2554.  Transfer  after  loss. 

§  2555.  Exception    in   the   case   of   several    subjects    in    one 

policy. 

§  2556.  In  case  of  the  death  of  the  insurer. 

§  2557.  In  the  case  of  transfer  between  cotenants. 

§  2558.  Policy,   when  void. 

§  2546.  Every  interest  in  property,  or  any  re- 
lation thereto,  or  liability  in  respect  thereof,  of 
such  a  nature  that  a  contemplated  peril  might 
directly  damnify  the  insured,  is  an  insurable  in- 
terest. 

Partner:  See  post,  sec.  2590. 

Bailees,  etc.:  See  sec.  2548,  infra. 

Future  products  insurable:  See  sec.  2.549,  infra. 

Life  insurance:  See  post,  sees.  2762,  2763. 

Stating  insurer's  interests  in  policy:  See  post, 
sees.  2568,  2587. 

§  2547.  An  insurable  interest  in  property  may 
consist  in: 

1.  An  existing  interest: 

2.  An  inchoate  interest  founded  on  an  existing 
interest;  or, 

3.  An  expectancy,  coupled  with  an  existing  in- 
terest in  that  out  of  which  the  expectancy  arises. 

§  2548.  A  carrier  of  depositary  of  any  kind  has 
an  insurable  interest  in  a  thing  held  by  him  as 
Ruch,  to  the  extent  of  its  value. 

Civ.    Code.— 45. 


§§  2o49-25:.4  INSURANCE.  >  530 

§  2549.  A  mere  coutiugeut  or  expectaut  inter- 
est in  anything,  not  founded  on  an  actual  right  to 
the  thing,  nor  upon  any  valid  contract  for  it,  is 
not  insurable. 

§  2550.  The  measure  of  an  insurable  interest 
in  property  is  the  extent  to  Avhich  the  insured 
might  be  damnified  by  loss  or  injury  thereof. 

See  also  next  section. 

Measure  of  indemnity  in  marine  insurance:  See 
post,  sec.  2736. 

§  2551.  The  sole  object  of  insurance  is  the  in- 
demnity of  the  insured,  and  if  he  has  no  insurable 
interest  the  contract  is  void. 

§  2552,  An  interest  insured  must  exist  when 
the  insurance  takes  eft'ect,  and  when  the  loss  oc- 
curs, but  need  not  exist  in  the  meantime. 

§  2553.  Except  in  the  cases  specified  in  the 
next  four  sections,  and  in  the  cases  of  life,  acci- 
dent, and  health  insurance,  a  change  of  interest 
in  any  part  of  a  thing  insured,  unaccompanied  by 
a  corresponding  change  of  interest  in  the  insur- 
ance, suspends  the  insurance  to  an  equivalent  ex- 
tent, until  the  interest  in  the  thing  and  the  inter- 
est in  the  insurance  are  vested  in  the  same  per- 
son. 

Transfer  by  partner:  See  sec.  2557,  infra. 

LiauMt'i-  [)y  operation  of  law:  Sec.  2556,  infra. 

Transfer  of  thing  insured  does  not  transfer  pol- 
icy: See  post,  sec.  2593. 

Transfer  of  life  insurance  policy:  See  sec.  2764, 
post.  ,         ] 

§  2554.  A  change  of  interest  in  a  thing  insured, 
after  the  occurrence  of  an  injury  which  results  in 
a  loss,  does  not  affect  the  right  of  the  insured  to 
indemnity  for  the  loss. 


531  INSURANCE.  §§  2555-2558 

§  2555.  A  change  of  interest  in  one  or  more 
of  several  distinct  tilings,  separately  insured  by 
one  policy,  does  not  avoid  the  insurance  as  to  the 
otliers. 

§  2556.  A  change  of  intei-est,  by  will  or  suc- 
cession, or  the  death  of  the  insured,  does  not 
avoid  an  insurance:  and  his  interest  in  the  insur- 
ance passes  to  the  person  taking  his  interest  in 
tile  thing  insured. 

§  2557.  A  transfer  of  interest  by  one  of  sev- 
eral partners,  joint  owners,  or  owners  in  com- 
mon, who  are  jointly  insured,  to  the  others,  does 
not  avoid  an  insurance,  even  though  it  has  been 
agreed  that  the  insurance  shall  cease  upon  an 
alienation  of  the  thing  insured. 

Insurance  by  partner  of  cotenant:  See  post,  sec. 
2590. 

§  2558.  Every  stipulation  in  a  policy  of  insur- 
ance for  the  payment  of  loss,  whether  the  person 
Insured  has  or  has  not  any  interest  in  the  prop- 
erty insured,  or  that  the  policy  shall  be  received 
as  proof  of  such  interest,  and  every  policy  exe- 
cuted by  way  of  gaming  or  wagerins',  is  void. 
[New  spption.  anproved  March  30.  1*^74:  Amend- 
ments 1873-4.  255.    In  effect  July  1.  1874.] 


§§  2561-2563  INSURANCE.  532 

ARTICLE  V. 

CONCEALMENT  AND  REPRESENTATIONS. 

§  2561.  Concealment,  what. 

§  2562.  Effect  of   concealment. 

§  2563.  What  must  be  disclosed. 

§  2564.  Matters   which  need  not  be   communicated   without 

inquiry. 

§  2565.  Test  of  materiality. 

§  25G6.  Matters  which  each  is  bound  to  know. 

§  2567.  Waiver   of   communication. 

§  2568.  Interest  of  insured. 

§  2569.  Fraudulent  warranty. 

§  2570.  Matters  of  opinion. 

§  2571.  Representation,   what. 

§  2572.  When   made. 

§  2573.  How    interpreted. 

§  2574.  Representations  as  to  future. 

§  2575.  How  may  affect  policy. 

§  2576.  When  may  be  withdrawn. 

§  2577.  Time  intended  by  representation. 

§  2578.  Representing  information. 

§  2579.  Falsity. 

§  2580.  Effect  of  falsity. 

§  2581.  Materiality. 

§  2582.  Application   of  provisions   of  this  article. 

§  2583.  Right  to  rescind. 

§  2561.  A  neglect  to  communicate  that  which 
a  party  l^nows,  and  ought  to  communicate,  is 
called  a  concealment. 

Concealment.— "Party"  refers  to  either  party  to 
the  contract:  See  sec.  25G3,  infra. 

Concealment  in  marine  insurance:  See  post, 
sees.  2GG9  et  seq. 

§  2562.  A  concealment,  whether  intentional  or 
unintentional,  entitles  the  injured  party  to  rescind 
a  contract  of  insurance. 

§  2563.  Each  party  to  a  contract  of  insurance 
must  communicate  to  the  other,  in  good  faith,  all 
facts  within  his  knowledge  which  are  or  wliich  he 
believes  to  be  material  to  the  contract,  and  which 


533  INSURANCE.  §§  2564-2567 

tlie  other  has  not  the  means  of  ascertaining,  and 
as  to  which  he  makes  no  warranty. 

§  2564.  Neither  party  to  a  contract  of  insur- 
ance is  bound  to  communicate  information  of  the 
matters  following,  except  in  answer  to  the  in- 
quiries of  the  other: 

1.  Those  which  the  other  knows; 

2.  Those  which,  in  the  exercise  of  ordinary 
care,  the  other  ought  to  know,  and  of  which  the 
former  has  no  reason  to  suppose  him  ignorant; 

3.  Those  of  which  the  other  waives  commun- 
ication; 

4.  Those  which  prove  or  tend  to  prove  the  ex- 
istence of  a  risk  excluded  by  a  warranty,  and 
which  are  not  otherwise  material;  and, 

5.  Those  which  relate  to  a  risk  excepted  from 
the  policy,  and  which  are  not  otherwise  material. 

Waiver  of  communication:  See  infra,  sec.  2507. 
Facts  covered  by  warranty:  See  infra,  sec.  2569. 

§  2565.  Materiality  is  to  be  determined  not  by 
the  event,  but  solely  by  the  probable  and  reason- 
able influence  of  the  facts  upon  the  party  to 
whom  the  communication  is  due,  in  forming  his 
estimate  of  the  disadvantages  of  the  proposed  con- 
tract, or  in  making  his  inquiries. 

Materiality  of  representation:  See  infra,  sec. 
2581. 

§  2566.  Each  party  to  a  contract  of  insurance 
is  bound  to  know  all  the  general  causes  which  are 
open  to  his  inquiry,  equally  vrith  that  of  the  oth- 
er, and  which  may  affect  either  the  political  or 
material  perils  contemplated;  and  all  general  us- 
ages of  trade. 

§  2567.  The  right  to  information  of  material 
facts  may  be  waived,  either  by  the  terms  of  insur- 


§§  2568-2575  INSURANCE.  534 

auce  or  by  neglect  to  make  inquiries  as  to  such 
facts,  Avliere  tliey  are  distinctly  implied  in  otlier 
facts  of  which  information  is  communicated. 

§  2568.  Information  of  the  nature  or  amount 
of  the  interest  of  one  insured  need  not  be  com- 
municate unless  in  answer  to  an  inquiry,  except 
as  prescribed  by  section  2587. 

§  2569.  An  intentional  and  fraudulent  omis- 
sion, on  the  part  of  one  insured,  to  communicate 
information  of  matters  proving  or  tending  to 
prove  the  falsity  of  a  warranty,  entitles  the  in- 
surer to  rescind. 

§  2570.  Neither  party  to  a  contract  of  insur- 
ance is  bound  to  communicate,  even  upon  in- 
quiry, information  of  his  own  judgment  upon  the 
matters  in  question.  , 

§  2571.  A  representation  may  be  oral  or  writ- 
ten. 

Representations  in  marine  insurance:  Sec.  2676, 
post. 

§  2572.  A  representation  may  be  made  at  the 
same  time  with  issuing  the  policy,  or  before  it. 
Warranties:   See  sees.  2603,  2604,  post. 

§  2573.  The  language  of  a  representation  is  to 
be  interpreted  by  the  same  rules  as  the  language 
of  contracts  in  general. 

Interpretation  of  contracts:  See  ante,  sec.  1635. 

§  2574.  A  representation  as  to  the  future  is  to 
be  deemed  a  promise,  unless  it  appears  that  it 
was  merely  a  statement  of  belief  or  expectation. 

§  2575.  A  representation  cannot  be  allowed  to 
qualify  an  express  provision  in  a  contract  of  in- 
surance; but  it  may  qualify  an  implied  warranty. 


335  INSURANCE.  §§  2576-2583 

§  2576.  A  representation  may  be  altered  or 
withdrawn  before  tlie  insurance  is  effected,  but 
not  afterwards. 

§  2577.  The  completion  of  the  contract  of  in- 
surance is  the  time  to  which  a  representation 
must  be  presumed  to  refer. 

§  2578.  When  a  person  insured  has  no  per- 
sonal knowledge  of  a  fact,  he  may  nevertheless 
repeat  information  which  he  has  upon  the  sub- 
ject, and  which  he  believes  to  be  true,  with  the 
explanation  that  he  does  so  on  the  information 
of  others,  or  he  may  submit  the  information,  in 
its  whole  extent,  to  the  insurer;  and  in  neither 
case  is  he  responsible  for  its  truth,  unless  it  pro- 
ceeds from  an  agent  of  the  insured  whose  duty 
it  is  to  give  the  intelligence. 

§  2579.  A  representation  is  to  be  deemed  false 
when  the  facts  fail  to  correspond  with  its  asser- 
tions or  stipulations. 

§  2580.  If  a  representation  is  false  in  a  ma- 
terial point  whether  afhrmative  or  promissory, 
the  injured  party  is  entitled  to  rescind  the  con- 
tract from  the  time  when  the  representation  be- 
comes false. 

§  2581.  The  materiality  of  a  representation  is 
determined  by  the  same  rule  as  the  materiality  of 
a  concealment. 

Materiality  of  representation,  how  determined: 
See  ante,  sec.  25G5. 

§  2582.  The  provisions  of  this  article  apply  as 
well  to  a  modification  of  a  contract  of  insurance 
as  to  its  original  formation. 

§  2583.  Whenever  a  right  to  rescind  a  contract 
of  insurance  is  given  to  the  insurer  by  any  pro- 


§§  2586-2588  INSURANCE.  536 

vision  of  this  chapter,  such  right  may  be  exer- 
cised at  any  time  previous  to  the  commencement 
of  an  action  on  the  contract.  [New  section,  ap- 
proved March  30.  1874;  Amendments  1878-4,  p. 
255.  In  effect  July  1,  1874.] 
See  sec.  2G09,  post. 


ARTICLE  VI. 

THE  POLICY. 

§  25S6.  Policy,    what. 

§  2587.  \vhat  must  be  specified  in  a  policy. 

§  2o88.  Whose  interest  is  covered. 

§  25S9.  Insurance  by  agent  or  trustee. 

§  2590.  Insurance   by   part  owner. 

§  25^1,  General  terms. 

§  2592.  Successive   owners. 

§  2593.  Transfer  of  the  thing  insured. 

§  2594.  Open   and  valued  policies. 

§  2595.  Open  policy,  what. 

§  2596.  Valued  policy. 

§  2597.  Running   policy,    what. 

§  2598.  Effect  of  receipt. 

§  2599.  Agreement  not  to  transfer. 

§  2586.  The  written  instrument,  in  which  a 
contract  of  insurance  is  set  forth,  is  called  a  pol- 
icy of  insurance. 

§  2587.    A  policy  of  insurance  must  specify: 

1.  The  parties  between  whom  the  contract  is 
made; 

2.  The  rate  of  premium; 

3.  The  property  or  life  insured; 

4.  The  interest  of  the  insured  in  property  in- 
sured, if  he  is  not  the  absolute  owner  thereof; 

5.  The  rislvs  insured  against;  and, 

G.    The  period  during  which  the  insurance  is  to 
continue. 
Compare  with  sec.  2568. 

§  2588.     When  the  name  of  the  person  intend- 


537  INSURANCE.  §§  2589-25S4 

ed  to  be  insured  is  specified  in  a  policy,  it  can  be 
applied  only  to  his  own  proper  interest. 

Stating  interest  of  insured:  See  ante,  sec.  2568. 

Insurable  interest  generally:  See  ante,  sec. 
2.540. 

§  2589.  When  an  insurance  is  made  by  an 
agent  or  trustee,  the  fact  that  liis  principal  or 
beneficiary  is  the  person  really  insured  may  be 
indicated  by  describing  him  as  agent  or  trustee, 
or  by  other  general  words  in  the  policy. 

§  2590.  To  render  an  insurance,  effected  by 
one  partner  or  part  owner,  applicable  to  the  in- 
terest of  his  copartners,  or  of  other  part  owners, 
it  is  necessary  that  the  terms  of  the  policy  should 
be  such  as  are  applicable  to  the  joint  or  common 
interest. 

Transfer  of  policy  from  one  partner  to  another: 
See  ante,  sec.  2557. 

§  2591.  When  the  description  of  the  insured 
in  a  policy  is  so  general  that  it  may  comprehend 
any  person  or  any  class  of  persons,  he  only  can 
claim  the  benefit  of  the  policy  who  can  show  that 
it  was  intended  to  include  him. 

§  2598.  A  policy  may  be  so  framed  that  it  will 
enure  to  the  benefit  of  whomsoever,  during  the 
continuance  of  the  risk,  may  become  the  owner  of 
the  interest  insured. 

§  2593.  The  mere  transfer  of  a  thing  insured 
does  not  transfer  the  policy,  but  suspends  it  until 
the  same  person  becomes  the  owner  of  both  the 
policy  and  the  thing  insured. 

Transfer  of  interest:  See  generally,  on  aliena- 
tion of  interest,  sees.  25.53,  et  seq. 

§  2594.    A  policy  is  either  open  or  valued. 


§§  2595-2599  INSURANCE.  538 

§  2595.  An  open  policy  is  one  in  which  the 
value  of  the  thing-  insured  is  not  agreed  upon,  but 
is  left  to  be  ascertained  in  case  of  loss. 

§  2596.  A  valued  policy  is  one  which  express- 
es on  its  face  an  agreement  that  the  thing  insured 
shall  be  valued  at  a  specified  sum. 

Valuation  in  marine  insurance:  See  post,  sec. 
273G. 

§  2597.  A  running  policy  is  one  which  con- 
templates successive  insurances,  and  which  pro- 
vides that  the  ob.ioct  of  the  policy  may  be  from 
time  to  time  defined,  especially  as  to  the  sub- 
jects of  insurance,  by  additional  statements  or 
indorsements. 

§  2598.  An  aclvuowledgment  in  a  policy  of 
the  receipt  of  premium  is  conclusive  evidence  of 
its  payment,  so  far  as  to  make  the  policy  binding, 
notwithstanding  any  stipulation  therein  that  it 
shall  not  be  binding  until  the  premium  is  actu- 
ally paid. 

Premiums  in  general:  See  sec.  2616  et  seq.,  post. 

§  2599.  An  agreement  made  before  a  loss,  not 
to  transfer  the  claim  of  a  person  insured  against 
the  insurer,  after  the  loss  has  happened,  is  void. 


539  INSURANCE.  §§  2G03-2008 

ARTICLE  VII. 

WARRANTIES. 

§  2603.  Warranty,   express  or  implied. 

S  2t;04.  Form. 

§  2e05.  Warranty,   in  what  contained. 

§  2t)06.  Past,   present,   and  future   warranties. 

§  26u7.  Warranty  as   to  past   or  present. 

§  260S.  Warranty  as  to  the  future. 

§  2609.  Performance    excused. 

§  2610.  What   acts  avoid   the   policy. 

§  2611.  Policy  may  provide  for  avoidance. 

§  2612.  Breach  without  fraud. 

§  2603.  A  warranty  is  either  express  or  im- 
plied. 

See  sec.  2G05,  infra. 

Implied  warranties  in  marine  insurance:  See 
sees.  2681  et  seq.,  post. 

§  2604.  No  particular  form  of  words  is  neces- 
sary to  create  a  -svarranty. 

§  2605.  Every  express  warranty,  made  at  or 
before  the  execution  of  a  policy,  must  be  con- 
tained in  the  policy  itself,  or  in  another  instru- 
ment signed  by  the  insured,  and  referred  to  in  the 
policy,  as  mali:ing-  a  part  of  it.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  p. 
255.     In  effect  July  1,  1874.] 

See  sees.  2571,  ante,  et  seq. 

§  2606.    A  warranty  may  relate  to  the  past,  the 
present,  the  future,  or  to  any  or  all  of  these. 
Promissory  warranties:  See  sec.  2608. 

§  2607.  A  statement  in  a  policy,  of  a  matter 
relating  to  the  person  or  thing  insured,  or  to  the 
risk,  as  a  fact,  is  an  express  warranty  thereof. 

§  2608.    A  statement  in  a  policy,  which  Imports 


§§  2609-2612  INSURANCE.  540 

that  it  is  intonded  to  do  or  not  to  do  a  tliiug 
which  materially  affects  the  risk,  is  a  warranty 
that  such  act  or  omission  shall  take  place. 

§  2609.  When  before  the  time  arrives  for  the 
performance  of  a  warranty  relating  to  the  future, 
a  loss  insured  against  happens,  or  performance 
becomes  unlawful  at  the  place  of  the  contract,  or 
impossible,  the  omission  to  fulfill  the  warranty 
does  not  avoid  the  policy.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  p. 
255.     In  effect  July  1,  1874.] 

Rescinding  contract  of  insurance:  See  sec.  2583, 
supra,  as  to  the  time  when  the  right  to  rescind 
may  be  exercised. 

§  2610.  The  violation  of  a  material  warranty, 
or  other  material  provision  of  a  policy,  on  the 
part  of  either  party  thereto,  entitles  the  other  to 
rescind. 

This  section  distinguishes  between  material 
and  immaterial  warranties.  Heretofore  all  war- 
ranties were  deemed  material.  The  insurer  can, 
however,  protect  himself,  under  section  2G11,  in- 
fra, by  declaring  in  the  policy  that  violation  of  an 
immaterial  warranty  will  avoid  the  contract. 

§  2611.  A  policy  may  declare  that  a  violation 
of  specific  provisions  thereof  shall  avoid  it,  other- 
wise the  breach  of  an  immaterial  provision  does 
not  avoid  the  policy. 

§  2612.  A  breach  of  warranty,  without  fraud, 
merely  exonerates  an  insurer  from  the  time  that 
it  occurs,  or  where  it  is  broken  in  its  inception  pre- 
vents the  policy  from  attaching  to  the  risk. 

Breach  of  warranty  without  fraud.— If  the  war- 
ranty was  broken  at  its  inception  without  any 
fraud  on  the  part  of  the  insured,  he  is  entitled  to 
a  return  of  the  premium:  See  sec.  2619,  post. 


541  INSURANCE.  §§  2616-2618 

ARTICLE  VIII. 

PREMIUM. 

§  2616.  When  premium  is  earned. 

§  2617.  Return  of  premium. 

§  2618.  Wneu   none    allowed. 

§  2619.  Return  for  fraud.  '_ 

§  2620.  Over-insurance  by  several   Insurers. 

§  2621.  Contribution. 

§  2622.  Proportionate  contribution. 

§  2616.  An  insurer  is  entitled  to  payment  of 
the  premium  as  soon  as  tlie  thing  insured  is  ex- 
posed to  the  peril  insured  against. 

Receipt  in  policy,  how  far  conclusive  of  pay- 
ment: See  sec.  2598,  ante. 

§  2617.  A  person  insured  is  entitled  to  a  return 
of  premium,  as  follows: 

1.  To  the  whole  premium  if  no  part  of  his  in- 
terest in  the  thing  insured  be  exposed  to  any  of 
the  perils  insured  against; 

2.  Where  the  insurance  is  made  for  a  definite 
period  of  time,  and  the  insured  surrenders  his  pol- 
icy, to  such  proportion  of  the  premium  as  corres- 
ponds with  the  unexpired  time,  after  deducting 
from  the  whole  premium  any  claim  for  loss  or 
damage  under  the  policy  which  has  previously  ac- 
crued. [Amendment,  approved  March  30,  1874; 
Amendments  1873-4,  p.  256.  In  effect  .July  1, 
1874.] 

Return  for  fraud:  See  sec.  2619,  infra. 

§  2618.  If  a  peril  insured  against  has  existed, 
and  the  insurer  has  been  liable  for  any  period, 
however  short,  the  insured  is  not  entitled  to  re- 
turn of  premiums,  so  far  as  that  particular  risk 
is  concerned.  [Amendment,  approved  March  30, 
1874;  Amendments  1873-4,  p.  256.  In  effect  Julv 
1,  1874.] 

Civ.   Code. -46. 


§§  2319-2622  INSURANCE.  542 

§  2619.  A  person  insured  is  entitled  to  a  re- 
turn of  the  premium  wlien  the  contract  is  void- 
able, on  account  of  the  fraud  or  misrepresenta- 
tion of  the  insurer,  or  on  account  of  facts,  of  the 
existence  of  which  the  insured  was  ignorant  with- 
out his  fault;  or  when,  by  any  default  of  the  in- 
sured other  than  actual  fraud,  the  insurer  never 
incurred  any  liability  under  the  policy. 

§  2620.  In  case  of  an  over-insurance  by  sever- 
al insurers,  the  insured  is  entitled  to  a  ratable  re- 
turn of  the  premium,  proportioned  to  the  amount 
by  which  the  aggregate  sum  insured  in  all  the 
policies  exceeds  the  insurable  value  of  the  thing 
at  risk. 

Double  insurance  defined:  See  post,  sec.  2641. 

§  2621.  AVhen  an  over-insurance  is  effected  by 
simultaneous  policies,  the  insurers  contribute  to 
the  premium  to  be  returned  in  proportion  to  the 
amount  insured  by  their  respective  policies. 

Contribution  in  cases  of  double  insurance:  See 
post,  sec.  2642. 

§  2622.  When  an  over-insurance  is  effected  by 
successive  policies,  those  only  contribute  to  a  re- 
turn of  the  premium  who  are  exonerated  by  prior 
insurances  from  the  liability  assumed  by  them, 
and  in  proportion  as  the  sum  for  which  the  pre- 
mium was  paid  exceeds  the  amount  for  which,  on 
account  of  prior  insurance,  they  could  be  made 
liable. 


543  INSURANCE.  §§  2626-2628 


ARTICLE  IX. 

LOSS. 

§  2626.  Perils,    remote   and  proximate. 

§  2627.  Loss  incurred  in  rescue  from  peril. 

§  2J28.  Excepted  perils. 

§  2629.  Negligence   and   fraud. 

§  2626.  Au  insurer  is  liable  for  a  loss  of  which 
a  peril  insured  against  was  the  proximate  cause; 
although  a  peril  not  contemplated  by  the  contract 
may  have  been  a  remote  cause  of  the  loss;  but  he 
is  not  liable  for  a  loss  of  which  the  peril  insured 
against  was  only  a  remote  cause. 

Negligence  of  insured:  See  sec.  2629,  infra. 

Perils  of  the  sea,  what  included  in  this  expres- 
sion: See  an  enumeration  of  what  are  the  sources 
of  "perils  at  sea,"  in  the  case  of  common  carriers, 
sec.  2199,  ante. 

§  2627.  An  insurer  is  liable  where  the  thing 
insured  is  rescued  from  a  peril  insured  against, 
that  would  otherwise  have  caused  a  loss,  if  in 
the  course  of  such  rescue  the  thing  is  exposed  to 
a  peril  not  insured  against,  which  permanently 
deprives  the  insured  of  its  possession,  in  whole  or 
in  part;  or  where  a  loss  is  caused  by  efforts  to 
rescue  the  thing  insured  from  a  peril  insured 
against. 

§  2628.  Where  a  peril  is  specially  excepted  in 
a  contract  of  insurance,  a  loss,  which  would  not 
have  occurred  but  for  such  peril,  is  thereby  except- 
ed; although  the  immediate  cause  of  the  loss  was  a 
peril  which  was  not  excepted. 


§§  2629-2636  INSURANCE.  544 

§  2629.  An  insurer  is  not  liable  for  a  loss 
caused  by  the  willful  act  of  the  insured;  but  he  is 
not  exonerated  by  the  negligence  of  the  insured, 
or  of  his  agents  or  others.  [Amendment,  ap- 
proved March  30,  1874;  Amendments  1873-4,  p. 
25G.    In  effect  July  1,  1874.] 


ARTICLE  X. 

NOTICE   OF  LOSS. 

§  2633.  Notice  of  loss. 

§  2634.  Preliminary   proofs. 

§  2635.  Waivers  of  defects  in  notice,  &c. 

§  2636.  Waiver  of  delay. 

§  2637.  Certificate,    when    dispensed   with. 

§  2633.  In  case  of  loss  upon  an  insurance 
against  tire,  an  insurer  is  exonerated,  if  notice 
thereof  be  not  given  to  him  by  some  person  in- 
sured, or  entitled  to  the  benefit  of  the  insurance, 
Avithout  unnecessary  delay.  [Amendment  ap- 
proved April  30,  1874;  Amendments  1873-4,  p. 
256.    In  effect  July  1,  1874.] 

§  2634.  When  preliminary  proof  of  loss  is  re- 
quired by  a  policy,  the  insured  is  not  bound  to 
give  such  proof  as  would  be  necessary  in  a  court 
of  justice;  but  it  is  sufficient  for  him  to  give  the 
best  evidence  which  he  has  in  his  power  at  the 
time. 

§  2635.  All  defects  in  a  notice  of  loss,  or  in 
preliminary  proof  thereof  which  the  insured 
might  remedy,  and  which  the  insurer  omits  to 
specify  to  him,  without  unnecessary  delay,  as 
grounds  of  objection,  are  waived. 

§  2636.  Delay  in  the  presentation  to  an  insurer 
of  notice  or  proof  of  loss  is  waived,  if  caused  by 


545  INSURANCE.  §§  2637-2642 

any  act  of  his,  or  if  lie  omits  to  make  objection 
promptly  and  specifically  upon  that  ground. 

§  2637.  If  a  policy  requires,  by  way  of  prelim- 
inary' proof  of  loss,  the  certificate  or  testimony 
of  a  person  other  than  the  insured,  it  is  sufficient 
for  the  insured  to  use  reasonable  diligence  to 
procure  it,  and  in  case  of  the  refusal  of  such  per- 
son to  give  it,  then  to  furnish  reasonable  evi- 
dence to  the  insurer  that  such  refusal  was  not  in- 
duced by  any  just  grounds  of  disbelief  in  the 
facts  necessary  to  be  certified. 

Presenting  false  proofs  for  policies:  Penal  Code, 
sec.  549. 

ARTICLE  XI. 

DOUBLE    INSURANCE. 

§  2641.     Double  insurance. 

§  2642.    Contribution  in   case   of   double  insurance. 

§  2641.  A  double  insurance  exists  where  the 
same  person  is  insured  by  several  insurers  sepa- 
rately in  respect  to  the  same  subject  and  inter- 
est. 

§  2642,  In  case  of  double  insurance,  the  sever- 
al insurers  are  liable  to  pay  losses  thereon  as  fol- 
lows: 

1.  In  fire  insurance,  each  insurer  must  contrib- 
ute ratably  towards  the  loss,  without  regard  to 
the  dates  of  the  several  policies; 

2.  In  marine  insurance,  the  liability  of  the  sev- 
eral insurers  for  a  total  loss,  whether  actual  or 
constructive,  where  the  policies  are  not  simultan- 
eous, is  in  the  order  of  the  dates  of  the  several 
policies:  no  liability  attaching  to  a  second  or  oth- 
er subsequent  policy  except  as  to  the  excess  of  the 
loss  over  the  amount  of  all  previous  policies  on 
the  same  interest.     If  two  or  more  policies  bear 


§§  2646-2649  INSURANCE.  546 

date  upon  the  same  day,  they  are  deemed  to  be 
simultaueous,  and  the  liability  of  insurers  on 
simultaneous  policies  is  to  contribute  ratably  with 
each  other.  The  insolvency  of  any  of  the  insurers 
does  not  affect  the  proportionate  liability  of  the 
other  insurers.  The  liability  of  all  insurers  on 
the  same  marine  interest  for  a  partial  or  average 
loss  is  to  contribute  ratably.  [Amendment,  ap- 
proved March  30,  1873-4;  Amendments  1873-4,  p. 
257.     In  effect  July  1,  1874.] 

Return  of  i^remium  by  successive  insurers:  See 
sec.  2622,  ante. 

ARTICLE  XII. 

REINSURANCE. 

§  2646.  Reinsurance,  what. 

§  2647.  Disclosures   required. 

§  2648.  Reinsurance  presumed  to  be  against  liability. 

§  2649.  Original   insured  has  no  interest. 

§  2646.  A  contract  of  reinsurance  is  one  by 
which  an  insurer  procures  a  third  person  to  insure 
him  against  loss  or  liability  by  reason  of  such  or- 
iginal insurance. 

§  2647.  Where  an  insurer  obtains  reinsurance, 
lie  must  communicate  all  the  representations  of 
the  original  insured,  and  also  all  the  knowledge 
and  information  he  possesses,  whether  previously 
ov  subsequently  acquired,  which  are  material  to 
the  risk. 

§  2648.  A  reinsurance  is  presumed  to  be  a  con- 
tract of  indemnity  against  liability,  and  not  mere- 
ly against  damage. 

§  2649.  The  original  insured  has  no  interest  in 
M  contract  of  reinsurance. 


547  INSURANCE.  §§  2655-2659 

CHAPTER  II. 

MARINE  INSURANCE. 

Article  I.  Definition  of  Marine   Insurance,    §   2655. 

II.  Insurable   Interest,    §§   2359-2665. 

III.  Concealment,    §§   2869-2672. 

IV.  Representations,    §§   2676-2677. 

V.  Implied  Warranties,  §§  2681-26S8. 

VI.  The  Voyage,  and  Deviation,  §§  2692-2697. 

VII.  Loss,    §§   2701-2712. 

VIII.  Abandonment,   §§  2716-2732. 

IX.  Measure  of  Indemnity,  §§  2736-2746. 

ARTICLE  I. 

DEFINITION    OP    MARINE    INSURANCE. 
§  2655.    Marine  insurance,   what. 

§  2655.  Marine  insurance  is  an  insurance 
again.st  risks  connected  with  navigation,  to  which 
a  ship,  cargo,  freightage,  profits,  or  other  insur- 
able interest  in  movable  property,  may  be  ex- 
posed during  a  certain  voyage  or  a  fixed  period  of 
time. 

Insurable  interest:  See  ante.  sees.  2546-2557. 

ARTICLE  II. 

INSURABLE   INTEREST. 

§  23-59.  Insurable  interest  in  a  ship. 

§  2630.  Interest  reduced  by  bottomry. 

§  2661.  Freightage,    what. 

§  2662.  Expected   freightage. 

§  2F63.  Interest  in   expected  freiehtage,   what. 

§  2664.  Insurable  interest  In  profits. 

§  2665.  Insurable   interest  of   charterer. 

§  2659.  The  owner  of  a  ship  has  in  all  cases 
an  insurable  interest  in  it,  even  when  it  has  been 


§§  2660-2365  INSURANCE.  g48 

chartered  by  one  who  covenants  to  pay  him  its 
value  in  case  of  loss. 
Bottomry  defined:  See  post,  sec.  3017. 

§  2660.  The  insurable  interest  of  the  owner  of 
a  ship  hypothecated  by  bottomry  is  only  the  ex- 
cess of  its  value  over  the  amount  secured  by  bot- 
tomry. 

Insurable  interest  generally:  See  sees.  2546  et 
seq. 

§  2661.  Freightage,  in  the  sense  of  a  policy  of 
marine  insurance,  signifies  all  the  benefit  derived 
by  the  owner  either  from  the  chartering  of  the 
ship  or  its  employment  for  the  carriage  of  his 
own  goods  or  those  of  others. 

See  sec.  2G55. 

§  2662.  The  owner  of  a  ship  has  an  insurable 
interest  in  expected  freightage  which  he  would 
have  certainly  earned  but  for  the  interven- 
tion of  a  peril  insured  against. 

§  2663.  The  interest  mentioned  in  the  last  sec- 
tion exists,  in  the  case  of  a  charter  party,  when 
the  ship  has  broken  ground  on  the  chartered  voy- 
age, and  if  a  price  is  to  be  paid  for  the  carriage 
of  goods  when  they  are  actually  on  board,  or 
there  is  some  contract  for  putting  them  on  board, 
and  both  ship  and  goods  are  ready  for  the  speci- 
fied voyage. 

§  2664.  One  who  has  an  interest  in  the  thing 
from  which  profits  are  expected  to  proceed,  has 
an  insurable  interest  in  the  profits. 

§  2665.  The  charterer  of  a  ship  has  an  insur- 
able interest  in  it,  to  the  extent  that  he  is  liable 
to  be  damnified  bv  its  loss. 


549  INSURANCE.  §§  2669-2672 

ARTICLE  III. 

CONCEALMENT. 

§  2669.     Information  must  be  communicated. 
§  2670.     Material   information. 
§  2671.     Presumption  of  knowledge  of  loss. 
§  2672.     Concealments   which   only  affect   the   risk   in   ques- 
tion. 

§  2669.  In  marine  insurance  each  party  is 
bound  to  communicate,  in  addition  to  what  is  re- 
quired by  section  2563,  all  the  information  which 
he  possesses,  material  to  the  risli,  except  such  as 
is  mentioned  in  section  2564,  and  to  state  the  ex- 
act and  whole  truth  in  relation  to  all  matters  that 
he  represents,  or  upon  inquiry  assumes  to  dis- 
close. 

Concealment  in  insurance  generally:  See  sees. 
2561  et  seq.,  and  sec.  2672. 

§  2670.  In  marine  insurance,  information  of 
the  belief  or  expectation  of  a  third  person,  in  ref- 
erence to  a  material  fact,  is  material. 

Representation  of  expectation  avoids  contract, 
"When:  See  sec.  2677. 

§  2671.  A  person  insured  by  a  contract  of  ma- 
rine insurance  is  presumed  to  have  had  knowl- 
edge, at  the  time  of  insuring,  of  a  prior  loss,  if  the 
information  might  possibly  have  reached  him  in 
the  usual  mode  of  transmission,  and  at  the  usual 
rate  of  communication. 

§  2672.  A  concealment  in  a  marine  insurance, 
in  respect  to  any  of  the  following  matters,  does 
not  vitiate  the  entire  contract,  but  merely  exon- 
erates the  insurer  from  a  loss  resulting  from  the 
risk  concealed: 

1.    The  national  character  of  the  insured: 


§§  2670,  2677  INSURANCE.  550 

2.  The  liability  of  the  thing  insured  to  capture 
and  detention; 

3.  The  liability  to  seizure  from  breach  of  for- 
eign laws  of  trade; 

4.  The  want  of  necessary  documents;  and, 

5.  The  use  of  false  and  simulated  papers. 


ARTICLE  IV. 

REPRESENTATIONS. 

§  2376,     Effect  of  intentional   falsity. 
§  2677.     Representation  of  expectation. 

§  2676.  If  a  representation,  by  a  person  in- 
sured by  a  contract  of  marine  insurance,  is  inten- 
tionally false  in  any  respect,  whether  material  or 

ii material,  the  insurer  may  rescind  the  entire 
contract. 

Representations  generally:  See  ante,  sees.  2571 
et  seq. 

§  2677.  The  eventual  falsity  of  a  representation 
as  to  expectation  does  not,  in  the  absence  of 
fraud,  avoid  a  contract  of  insurance. 

Expectation  of  a  third  person,  material:  Sec. 
2671. 


551  INSURANCE.  §|  2681-2683 

ARTICLE   V. 

IMPLIED  WARRANTIES. 

§  2681.    Warranty  of  seaworthiness. 

§  2682.     Seaworthiness,    what. 

§  26S3.    At  what  time  seaworthiness  must  exist. 

§  2684.  What  things  are  required  to  constitute  seaworthi- 
ness. 

§  26S5.  Different  degrees  of  seaworthiness  at  different 
stages  of  the  voyage. 

§  2686.    Unseaworthiness  during  the  voyage. 

§  2687.     Seaworthiness  for  purposes  of  insurance  on  cargo. 

§  2688.    Neutral   papers. 

§  2681.  In  every  marine  insurance  upon  a 
ship  or  freiglit,  or  freightage,  or  upon  anything 
which  is  the  subject  of  marine  insurance,  a  war- 
ranty is  implied  that  the  ship  is  seaworthy. 
[Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  2.57.     In  effect  July  1,  1874.] 

The  original  section  confined  the  implied  war- 
ranty of  seaworthiness  to  insurances  on  the 
property  of  the  ship-owner,  for  the  reason,  as  the 
commissioners  state,  that  the  former  law  imply- 
ing such  a  warranty  in  every  case — the  law  as  re- 
enacted  by  the  amendment  of  1874 — "is  not  found- 
ed upon  reason.  Insurers  know  the  quality  of 
vessels  much  better  than  shippers." 

Seaworthiness  defined:  See  next  section. 

§  2682.  A  ship  is  seaworthy,  when  reasonably 
fit  to  perform  the  services,  and  to  encounter  the 
ordinary  perils  of  the  voyage,  contemplated  by 
the  parties  to  the  policy. 

Seaworthiness  defined:  Consult  sees.  2683-2685. 

§  2683.  An  implied  wari'anty  of  seaworthi- 
ness is  complied  with  if  the  ship  be  seaworthy  at 
the  time  of  the  commencement  of  the  risk,  except 
in  the  following  cases: 


§§  2684-2687  INSURANCE,  552 

1.  When  the  insurance  is  made  for  a  specified 
length  of  time,  the  implied  warranty  is  not  com- 
plied with  unless  the  ship  be  seaworthy  at  the 
commencement  of  every  voyage  she  may  under- 
take during  that  time;  and, 

2.  When  the  insurance  is  upon  the  cargo, 
which,  by  the  terms  of  the  policy,  or  the  descrip- 
tion of  the  voyage,  or  the  established  custom  of 
trade,  is  to  be  transshipped  at  an  intermediate 
port,  the  implied  warranty  is  not  complied  with, 
unless  each  vessel  upon  which  the  cargo  is  ship- 
ped or  transshipped  be  seaworthy  at  the  com- 
mencement of  its  particular  voyage.  [Amend- 
ment, approved  March  30,  187-1;  Amendments 
1873-4,  p.  257.     In  effect  July  1,  1874.] 

§  2684.  A  warranty  of  seaworthiness  extends 
not  only  to  the  condition  of  the  structure  of  the 
ship  itself,  but  requires  that  it  be  properly  laden, 
and  provided  with  a  competent  master,  a  sufii- 
cient  number  of  competent  officers  and  seamen, 
and  the  requisite  appurtenances  and  equipments, 
such  as  ballast,  cables,  and  anchors,  cordage  and 
sails,  food,  water,  fuel,  and  lights,  and  other  nec- 
essary or  proper  stores  and  implements  for  the 
voyage. 

§  2685.  Where  different  portions  of  the  voyage 
contemplated  by  a  policy  differ  in  respect  to  the 
things  requisite  to  make  the  ship  seaworthy  there- 
for, a  warranty  of  seaworthiness  is  complied  with 
if,  at  the  commencement  of  each  portion,  the  ship 
is  seaworthy  with  reference  to  that  portion. 

§  2686.  W^hen  a  ship  becomes  unseaworthy 
during  the  voyage  to  which  an  insurance  relates, 
an  unreasonable  delay  in  repairing  the  defect  ex- 
onerates the  insurer  from  liability  from  any  loss 
arising  therefrom, 

§  2687.    A  ship  which  is  seaworthy  for  the  pur- 


553  INSURANCE.  §§  2688-2696 

pose  of  au  iusurauce  upon  the  ship  may  neverthe- 
less, by  reason  of  being  unfitted  to  receive  the 
cargo,  be  unseaworthy  for  the  purpose  of  insur- 
ance upon  the  cargo. 

§  2688.  Where  the  nationality  or  neutrality  of 
a  ship  or  cargo  is  expressly  warranted,  it  is  im- 
plied that  the  ship  will  carry  the  requisite  docu- 
ments to  show  such  nationality  or  neutrality,  and 
that  it  will  not  carry  any  documents  which  cast 
reasonable  suspicion  thereon. 


ARTICLE  VI. 

THE   VOYAGE   AND   DEVIATION. 

§  2692.  Voyage    insured,    how    determined. 

§  2693.  Course   of   sailing,    how   determined. 

§  2694.  Deviation,   what. 

§  2695.  When  proper. 

§  2696.  When  improper. 

§  2697.  Deviation   exonerates   the   insurer. 

§  2692.  When  the  voyage  contemplated  by  a 
policy  is  described  by  the  places  of  beginning  and 
ending,  the  voyage  insured  is  one  which  conforms 
to  the  course  of  sailing  fixed  by  mercantile  us- 
age between  those  places. 

§  2693.  If  the  course  of  sailing  is  not  fixed  by 
mercantile  usage,  the  voyage  insured  by  a  policy 
is  the  way  between  the  places  specified  which,  to 
a  master  of  ordinary  skill  and  discretion,  would 
seem  the  most  natural,  direct,  and  advantageous. 

§  2694.  Deviation  is  a  departure  from  the 
course  of  the  voyage  insured,  mentioned  in  the 
last  two  sections,  or  an  unreasonable  delay  in  pur- 
suing the  voyage,  or  the  commencement  of  an  en- 
tirely different  voyage. 

§  2695.    A  deviation  is  proper: 

Civ.    Code.— 47. 


§§  2696-2701  INSURANCE.  554 

1.  A\'lieu  caused  by  circumstances  over  which 
neither  the  master  nor  the  owner  of  the  ship  has 
any  control; 

2.  When  necessary  to  comply  with  a  warranty, 
or  to  avoid  a  peril,  whether  insured  against  or 
not; 

y.  When  made  in  good  faith,  and  upon  reason- 
able grounds  of  belief  in  its  necessity  to  avoid  a 
13eril;  or, 

4.  When  made  in  good  faith,  for  the  purpose 
of  saving  human  life,  or  relieving  another  vessel 
in  distress. 

§  2696.  Every  deviation  not  specified  in  the 
last  section  is  improper. 

§  2697.  An  insurer  is  not  liable  for  any  loss 
happening  to  a  thing  insured  subsequently  to  an 
improper  deviation. 


AKTICLE  VII. 

LOSS. 

§  2701.  Total  and  partial   loss. 

§  2702.  Partial  loss. 

§  2703.  Actual   and  constructive  total   loss. 

§  2704.  Actual  total  loss,  what. 

§  2705.  Constructive   total    loss. 

§  2706.  Presumed  actual  loss. 

§  2707.  Insurance   on    cargo,    &c.,    when    voyage    is   broken 

up. 

§  2708.  Cost  of  reshipment,  &c. 

§  2709.  When  insured  is  entitled  to  payment. 

§  2710.  Abandonment  of  goods  on  insurance  of  profits. 

§  2711.  Average  loss. 

§  2712.  Insurance  against  total  loss. 

§  2701.    A  loss  may  be  either  total  or  partial. 
Total  loss  either  actual  or  constructive:  See  sec. 
2703. 
Actual  total  loss  defined:  See  2704. 
Constructive  total  loss  defined:  See  sec.  2705. 


555  INSURANCE.  §§  2702-2707 

§  2702.     Even    lu.ss  which   is  uot  total  is  par- 
tial. 
Liability  ou  partial  loss:  Sec.  2737. 
One-third  new  for  old:  Sec.  2740. 

§  2703.    A  total  loss   may  be  either  actual  or 
coustriictive. 
Actual  total  loss  defined:  See.  2704. 
Actual  loss,  when  presumed:  Sec.  2706. 
Constructive  loss  defined:  Sec.  2705. 

§  2704.    An  actual  total  loss  is  caused  by: 

1.  A  total  destruction  of  the  thing  insured; 

2.  The  loss  of  the  thing  by  sinking,  or  by  being 
broken  up; 

3.  Any  damage  to  the  thing  which  renders  it 
valueless  to  the  owner  for  the  purposes  for  which 
he  held  it;  or, 

4.  Any  other  event  which  entirely  deprives  the 
owner  of  the  possession,  at  the  port  of  destination, 
of  the  thing  insured. 

§  2705.  A  constructive  total  loss  is  one  which 
gives  to  a  person  insured  a  right  to  abandon,  un- 
der section  2717. 

Abandonment  for  constructive  total  loss:  Sees. 
2716  et  seq. 

§  2706.  An  actual  loss  may  be  presumed  from 
the  continued  absence  of  a  ship  without  being 
heard  of;  and  the  length  of  time  which  is  suffi- 
cient to  raise  this  presumption  depends  on  the  cir- 
cumstances of  the  case. 

§  2707.  When  a  ship  is  prevented,  at  an  inter- 
mediate port,  from  completing  the  voyage,  by  the 
perils  insured  against,  the  master  must  make  ev- 
ery exertion  to  proctire,  in  the  same  or  a  contig- 
uous port,  another  ship,  for  the  purpose  of  con- 
veying the  cargo  to  its  destination;  and  the  liabil- 


§§  2708-2712  INSURANCE.  553 

ity  of  a  marine  insurer  tliereon  continues  after 
they  are  thus  reshipped.  [Amendment,  approved 
March  30,  1874;  Amendments  1873-4,  258.  In 
effect  July  1,  1874.] 

Constructive  total  loss  of  cargo:  See  sees.  2717, 
post,  subd.  4. 

§  2708.  In  addition  to  the  liability  mentioned 
in  the  last  section,  a  marine  insurer  is  bound  for 
damages,  expenses  of  discharging,  storage,  reship- 
ment,  extra  freightage,  and  all  other  expenses  in- 
curred in  saving  cargo  reshipped  pursuant  to  the 
last  section,  up  to  the  amount  insured. 

§  2709.  Upon  an  actual  total  loss,  a  person  in- 
sured is  entitled  to  payment  without  notice  of 
abandonment. 

§  2710.  Repealed.  [March  30,  1874;  Amend- 
ments 1874,  258.     In  effect  July  1,  1874.] 

§  2711.  Where  it  has  been  agreed  that  an  in- 
surance upon  a  particular  thing  or  class  of  things 
shall  be  free  from  particular  average,  a  marine 
insurer  is  not  liable  for  any  particular  average 
loss  not  depriving  the  insured  of  the  possession, 
at  the  port  of  destination,  of  the  whole  of  such 
thing,  or  class  of  things,  even  though  it  become 
entirely  worthless,  but  he  is  liable  for  his  pro- 
portion of  all  general  average  loss  assessed  upon 
the  thing  insured.  [Amendment,  approved  March 
30,  1874;  Amendments  1873-4,  p.  258.  In  effect 
July  1,  1874.] 

§  2712.  An  insurance  confined  in  terms  to  an 
actual  total  loss  does  not  cover  a  constructive 
total  loss,  but  covers  any  loss  which  neces- 
sarily results  in  depriving  the  insured  of  the  pos- 
session, at  the  port  of  destination,  of  the  entire 
thing  insured.     [Amendment,  approved  March  30, 


557  INSURANCE.  §§  2716,  2717 

1874;  Amendments  1873-4,  p.  259.     In  effect  Ju]v 
1,  1874.] 


ARTICLE  VIII. 

ABANDONMENT. 

§  2716.  Abandonment,    what. 

§  2717.  When   insured   may  abandon. 

§  2718.  Must  be  unqualified. 

§  2719.  When   may  be  made. 

§  2720.  Abandonment  may  be  defeated. 

§  2721.  How  made. 

§  2722.  Requisites    of   notice. 

§  272.3.  No  other  cause  can  be  relied  on. 

g  2724.  Effect. 

§  2725.  Waiver  of  formal  abandonment. 

§  2723.  Agents    of   the   insured   become   agents     of    the    in- 
surer. 

§  2727.  Acceptance  not  necessary. 

§  2728.  Acceptance  conclusive. 

§  2729.  Accepted   abandonment,    irrevocable. 

§  2730.  Freightage,    how  affected  by  abandonment   of  ship. 

§  2731.  Refusal   to  accept. 

§  2732.  Omission  to   abandon. 

§  2716.  Abandonment  is  the  act  by  which,  af- 
ter a  constructive  total  loss,  a  person  insured  by 
contract  of  marine  insurance  declares  to  the  in- 
surer that  he  relinquishes  to  him  his  interest  in 
the  thins:  insured. 

Abandonment,  requisites  of:  See  sees.  2718-2723. 

Constructive  total  loss  defined:  Sec.  2705. 

§  2717.  A  person  insured  by  a  contract  of  ma- 
rine insurance  may  abandon  the  thine:  insured,  or 
any  particular  portion  thereof  separately  valued 
by  the  policy,  or  otherwise  separately  insured,  and 
recover  for  a  total  loss  thereof,  when  the  cause  of 
the  loss  is  a  peril  insured  a.aainst: 

1.  If  more  than  half  thereof  in  value  is  actu- 
ally lost,  or  would  have  to  be  expended  to  recover 
it  from  the  peril: 


§§  2718-2722  INSURANCE.  558 

2.  If  it  is  injured  to  such  au  xteut  as  to  reduce 
its  value  more  than  one-half; 

3.  If  the  thing-  insured,  being  a  ship,  the  con- 
templated voyage  cannot  be  lawfully  performed 
without  incurring  an  expense  to  the  insured  of 
more  than  half  the  value  of  the  thing  abandoned, 
or  without  incurring  a  risk  which  a  prudent  man 
would  not  take  under  the  circumstances;  or, 

4.  If  the  thing  insured,  being  cargo  or  freight- 
age, the  voyage  cannot  be  performed  nor  another 
ship  procured  by  the  master,  within  a  reasonable 
time  and  with  reasonable  diligence,  to  forward 
the  cargo,  without  incurring  the  like  expense  or 
risk.  But  freightage  cannot  in  any  case  be  aban- 
doned, unless  the  ship  is  also  abandoned. 

Freightage,  how  affected  by  abandonment:  See 
sec.  2730. 

§  2718.  An  abandonment  must  be  neither  par- 
tial nor  conditional. 

§  2719.  An  abandonment  must  be  made  within 
a  reasonable  time  after  the  information  of  the 
loss,  and  after  the  commencement  of  the  voyage, 
and  before  the  party  abandoning  has  information 
of  its  completion. 

Omitting  to  abandon,  insured  may  still  recover 
for  his  actual  loss:  Sec.  2732,  post. 

§  2720.  Where  the  information  upon  which  an 
abandonment  has  been  made  proves  incorrect,  or 
the  thing  insured  was  so  far  restored  when  the 
abandonment  was  made  that  there  was  then  in 
fact  no  total  loss,  the  abandonment  becomes  inef- 
fectual. 

§  2721.  Abandonment  is  made  by  giving  notice 
thereof  to  the  insurer,  which  may  be  done  orally, 
or  in  writing. 

§  2722.    A  notice  of  abandonment  must  be  ex- 


I 


^59  INSURANCE.  §§  2723-2729 

plicit,  and  must  specify  the  particular  cause  of 
the  abaudoument,  but  need  state  only  enough  to 
show  that  there  is  probable  cause  therefor,  and 
need  not  be  accompanied  with  proof  of  interest  or 
of  loss. 
See  sec.  2723. 

§  2723.  An  abandonment  can  be  sustained  only 
upon  the  cause  specified  in  the  notice  thereof. 

§  2724.  An  abandonment  is  equivalent  to  a 
transfer,  by  the  insured,  of  his  interest,  to  the  in- 
surer, with  all  the  chances  of  recovery  and  in- 
demnitj'. 

Subrogation  of  insurer:  See  sec.  2745. 

§  2725.  If  a  marine  insurer  pays  for  a  loss  as 
if  it  were  an  actual  total  loss,  he  is  entitled  to 
whatever  may  remain  of  the  thing  insured,  or  its 
proceeds  or  salvage,  as  if  there  had  been  a  formal 
abandonment. 

§  2726.  Upon  an  abandonment,  acts  done  in 
good  faith  by  those  who  were  agents  of  the  in- 
sured in  respect  to  the  thing  insured,  subsequent 
to  the  loss,  are  at  the  risk  of  the  insurer,  and  for 
his  benefit. 

§  2727.  An  acceptance  of  an  abandonment  is 
not  necessary  to  the  rights  of  the  insured,  and  is 
iiot  to  be  presumed  from  the  mere  silence  of  the 
insurer  upon  his  receiving  notice  of  abandon- 
ment. 

Compare  with  sec.  2731,  infra. 

§  2728.  The  acceptance  of  an  abandonment, 
whether  express  or  implied,  is  conclusive  upon  the 
parties,  and  admits  the  loss  and  the  sufficiency  of 
the  abandonment. 

>^  2729.    An  abandonment  once    made  and   ac- 


§§  2730-2736  INSURANCE.  560 

cepted    is    irrevocable,    unless   the    ground    upon 
which  it  was  made  proves  to  be  unfounded. 

§  2730.  On  an  accepted  abandonment  of  a 
ship,  freightage  earned  previous  to  the  loss  be- 
longs in  the  insurer  thereof;  but  freightage  subse- 
quently earned  belongs  to  the  insurer  of  the  ship. 

Abandonment  of  freightage:  See  sec.  2017,  subd. 
4. 

§  2731.  If  an  insurer  refuses  to  accept  a  valid 
abandonment,  he  is  liable  as  upon  an  actual  total 
loss,  deducting  from  the  amount  any  proceeds  of 
the  thing  insured  which  may  have  come  to  the 
hands  of  the  insured. 

Acceptance  not  presumed  from  silence:  Sec. 
2727. 

§  2732.  If  a  person  insured  omits  to  aban- 
don, he  may  nevertheless  recover  his  actual  loss. 


ARTICLE  IX. 

MEASURE  OP  INDEMNITY. 

§  2736.  Valuation,   when  conclusive. 

§  2737.  Partial  loss. 

§  2738.  Profits. 

§  2739.  Valuation   apportioned. 

§  2740.  Valuation  applied  to  profits. 

§  2741.  Estimating   loss  under   an   open   policy. 

§  2742.  Arrival  of  thing  damaged. 

§  2743.  Labor  and  expenses. 

§  2744.  General  average. 

§  2745.  Contribution, 

§  2746.  One  third  new  for  old. 

§  2736.  A  valuation  in  a  policy  of  marine  in- 
surance is  conclusive  between  the  parties  thereto 
in  the  adjustment  of  either  a  partial  or  total  loss, 


561  INSURANCE.  §§  2737-2740 

if  the  insured  has  some  interest  at  risk,  and  there 
is  no  fraud  on  his  part;  except  that  when  a  thing 
has  been  hypothecated  by  bottomry  or  responden- 
tia, before  its  insurance,  and  without  the  l^nowl- 
edge  of  the  person  actually  procuring  the  insur- 
ance, he  may  show  the  real  value.  But  a  valua- 
tion fraudulent  in  fact  entitles  the  insurer  to  re- 
scind the  contract. 

Valued  policies:  See  ante,  sec.  2596. 

Valued  policy  on  freightage  or  cargo:  See  sec. 
2739,  infra. 

Valuation  of  profits:  See  sec.  2740. 

Valued  policy  of  fire  insurance:  See  sec.  2756, 
post. 

§  2737.  A  marine  insurer  is  liable  upon  a  par- 
tial loss,  only  for  such  proportion  of  the  amount 
insured  by  him  as  the  loss  bears  to  the  value  of 
the  whole  interest  of  the  insured  in  the  property 
insured. 

Compare  with  section  2756,  stating  the  measure 
of  indemnity  in  case  of  fire  insurance. 

§  2738.  Where  profits  are  separately  insured 
in  a  contract  of  marine  insurance,  the  insured  is 
entitled  to  recover  in  case  of  loss,  a  proportion  of 
such  profits  equivalent  to  the  proportion  which 
the  value  of  the  property  lost  bears  to  the  value 
of  the  whole. 

See  infra,  sec.  2740. 

§  2739.  In  case  of  a  valued  policy  of  marine 
insurance  on  freightage  or  cargo,  if  a  part  only  of 
the  subject  is  exposed  to  risk,  the  valuation  ap- 
plies only  in  proportion  to  such  part. 

§  2740.  When  profits  are  valued  and  insured 
by  a  contract  of  marine  insurance,  a  loss  of  them 
is  conclusively  presumed  from  a  loss  of  the  prop- 


§§  2741-2743  INSURANCE.  562 

erty  out  of  wliicli  tliey  were  expected  to  arise,  aud 
the  valiiatiou  fixes  their  amouut. 
Harmonizes  with  sec.  2738. 

§  2741.  In  estimating  a  loss  under  an  open 
policy  of  marine  insurance,  the  following  rules 
are  to  be  observed: 

1.  The  value  of  a  ship  is  its  value  at  the  begin- 
ning of  the  risk,  including  all  articles  or  charges 
which  add  to  its  permanent  value,  or  which  are 
necessary  to  prepare  it  for  the  voyage  insured; 

2.  The  value  of  cargo  is  its  actual  cost  to  the 
insured,  when  laden  on  board,  or  where  that  cost 
cannot  be  ascertained,  its  market  value  at  the 
time  and  place  of  lading,  adding  the  charges  in- 
curred in  purchasing  and  placing  it  on  board,  but 
without  reference  to  any  losses  incurred  in  rais- 
ing money  for  its  purchase,  or  to  any  drawback 
on  its  exportation,  or  to  the  fluctuations  of  the 
market  at  the  port  of  destination,  or  to  expenses 
incurred  on  the  way  or  on  arrival; 

3.  The  value  of  freightage  is  the  gross  freight- 
age, exclusive  of  primage,  without  reference  to  the 
cost  of  earning  it:  and, 

4.  The  cost  of  insurance  is  in  each  case  to  be 
added  to  the  value  thus  estimated. 

Partial  loss  of  ship:  Sec.  2746. 

§  2742.  If  cargo  insured  against  partial  loss  ar- 
rives at  the  port  of  destination  in  a  damaged  con- 
dition, the  loss  of  the  insured  is  deemed  to  be  the 
same  proportion  of  the  value  which  the  market 
price  at  that  port,  of  the  thing  so  damaged,  bears 
to  the  market  price  it  woiUd  have  brought  if 
sound. 

§  2743.  A  marine  insurer  is  liable  for  all  the 
expense  attendant  upon  a  loss  which  forces  the 
ship    into  port    to    be  repaired;    and  where    it  is 


563  INSURANCE.  §§  2744-2746 

agreed  that  the  insured  may  hibor  for  the  recov- 
ery of  the  property,  the  insurer  is  liable  for  the 
expense  incurred  thereby,  such  expense,  in  either 
case,  being  in  addition  to  a  total  loss,  if  that  after- 
wards occurs. 

§  2744.  A  marine  insurer  is  liable  for  a  loss 
falling  upon  the  insured,  through  a  contribution 
in  respect  to  the  thing  insured,  required  to  be 
made  by  him  towards  a  general  average  loss  called 
for  by  a  peril  insured  against. 

General  average  generally:  See  sees.  2152  et 
seq. 

§  2745.  Where  a  person  insured  by  a  contract 
of  marine  insurance  has  a  demand  against  others 
for  contribution,  he  may  claim  the  whole  loss  from 
the  insurer,  subrogating  him  to  his  own  right  to 
contribution.  But  no  such  claim  can  be  made  up- 
on the  insurer  after  the  separation  of  the  interests 
liable  to  contribution,  nor  when  the  insured,  hav- 
ing the  right  and  opporttinity  to  enforce  contribu- 
tion from  others,  has  neglected  or  waived  the  ex- 
ercise of  that  right.  [Amendment  approved  March 
.30.  1874;  Amendments  187.3-4,  2.59.  In  effect  July 
1,  1874.] 

Subrogation  of  insurer:   See  sec.  2724. 

§  2746.  In  the  case  of  a  partial  loss  of  a  ship 
or  its  equipments,  the  old  materials  are  to  be  ap- 
plied towards  payment  for  the  new,  and  whether 
the  ship  is  new  or  old,  a  marine  instirer  is  liable 
for  only  two-thirds  of  the  remaining  cost  of  the 
repairs,  except  that  he  must  pay  for  anchors  and 
cannon  in  full,  and  for  sheathing  metal  at  a  depre- 
ciation of  only  two  and  one-half  per  cent  for  each 
month  that  it  has  been  fastened  to  the  ship. 

Sale  of  wrecked  or  damaged  vessels:  See  Polit. 
Code,  sec.  2507. 


§§  2752-2755  INSURANCE.  564 

CHAPTER  III. 

FIRE    INSURANCE. 

§  2752.  False  representations.     (Repealed.) 

§  2753.  Alteration  increasing  risk. 

§  2754.  Alteration  not  increasing  risk. 

§  2755.  Acts  of  the  insured. 

§  2756.  Measure   of  indemnity. 

§  2752.  Repealed.  [March  30,  1874;  Amend- 
ments 1873-4,  259.    In  effect  July  1,  1874.] 

§  2753.  An  alteration  in  the  use  or  condition  of 
a  thing-  insured  from  that  to  which  it  is  limited  by 
the  policy,  made  without  the  consent  of  the  in- 
surer, by  means  within  the  control  of  the  insured, 
and  increasing  the  risk,  entitles  an  insurer  to  re- 
scind a  contract  of  fire  insurance. 

§  2754.  An  alteration  in  the  use  or  condition  of 
a  thing  insured  from  that  to  which  it  is  limited 
by  the  policy,  which  does  not  increase  the  rislv, 
does  not  affect  a  contract  of  fire  insurance. 

Alteration  not  increasing  risk.— The  phraseology 
of  this  section  is  somewhat  ambiguous.  "Lim- 
ited" cannot  mean  "stipulated,"  in  the  sense  that 
if  the  policy  stipulates  for  the  use  of  the  premises 
in  a  particular  way  and  against  any  other  use,  a 
violation  of  this  stipulation  will  not  affect  the  con- 
tract unless  the  violation  increases  the  risk.  The 
extent  of  the  alteration  in  such  case  is  not  mate- 
rial, as  it  is  shown  in  the  note  to  the  preceding 
section.  Probably  "limited"  is  to  be  taken  as  a 
term  of  description  merely. 

§  2755.  A  contract  of  fire  insurance  is  not  af- 
fected by  any  act  of  the  insured  subsequent  to  the 
execution  of  the  policy,  which  does  not  violate  its 
provisions,  even  though  it  increases  the  risk  and 
is  the  cause  of  the  loss. 


565  INSURANCE.  §§  2756-2763 

§  2756.  If  there  is  no  valuation  in  the  policy, 
the  measure  of  indemnity  in  an  insurance  against 
fire  is  the  expense,  at  the  time  that  the  loss  is  pay- 
able, of  replacing  the  thing  lost  or  injured  in  the 
condition  in  which  it  was  at  the  time  of  the  in- 
jury; but  the  effect  of  a  valuation  in  a  policy  of 
fire  insurance  is  the  same  as  in  a  policy  of  marine 
insurance. 

Valued  policy  in  marine  insurance:  See  ante, 
sec.  2736. 

CHAPTER  IV. 

LIFE    AND    HEALTH    INSURANCE. 

§  2762.  Insurance  upon  life,  when  payable. 

§  2763.  Insurable  interest. 

§  2764.  Assignee,  &c.,  of  life  policy  need  have  no  Interest. 

§  2765.  Notice  of  transfer. 

§  2766.  Measure  of  indemnity. 

§  2762.  An  insurance  upon  life  may  be  made 
payable  on  the  death  of  the  person,  or  on  his  sur- 
viving a  specified  period,  or  periodically  so  long 
as  he  shall  live,  or  otherwise  contingently  on  the 
continuance  or  determination  of  life. 

Mutual  life,  health,  and  accident  insurance  cor- 
porations: See  ante,  sec.  437;  post.  Appendix,  p. 
770. 

Fraternal  societies  not  insurance  companies: 
See  ante,  sec.  451. 

§  2763.  Every  person  has  an  insurable  interest 
in  the  life  and  health: 

1.  Of  himself; 

2.  Of  any  person  on  whom  he  depends  wholly 
or  in  part  for  education  or  support; 

3.  Of  any  person  under  a  legal  obligation  to 
him  for  the  payment  of  money,  or  respecting  prop- 
erty or  services,  of  Avhich  death  or  illness  might 
delay  or  prevent  the  performance:  and, 

4.  Of  any  person  upon  whose  life  any  estate  or 
interest  vested  in  him  depends. 

Civ.    Code.— 48. 


§§  27Ji-2772  INDEMNITY.  566 

Insurable  interest  generally:  See  sees.  2546  et 
seq. 

§  2764.  A  policy  of  insurance  upon  life  or 
health  may  pass  by  transfer,  will,  or  succession  to 
any  person,  whether  he  has  an  insurable  interest 
or  not,  and  such  person  may  recover  upon  it  what- 
ever the  insured  might  have  recovered. 

Compare  with  section  2553,  ante. 

§  2765.  Notice  to  an  insurer  of  a  transfer  or 
bequest  thereof  is  not  necessary  to  preserve  the 
validity  of  a  policy  of  insurance  upon  life  or 
health,  unless  thereby  expressly  required. 

§  2766.  Unless  the  interest  of  a  person  insured 
is  susceptible  of  exact  pecuniary  measurement, 
the  measure  of  indemnity  under  a  policy  of  insur- 
ance upon  life  or  health  is  the  sum  fixed  in  the  pol- 
icy. 

Act  relating  to  life,  health,  accident  and  annuity 
or  endowment  insurance:  See  post.  Appendix,  p. 
770. 

TITLE  XII. 

INDEMNITY. 

§  2772.  Indemnity,  what. 

§  2773.  Indemnity  for  a  future  wrongful  act  void. 

§  2774.  Indemnity  for  a  past  wrongful  act  valid. 

§  277.5.  Indemnity  extends  to  acts  of  agents. 

§  2776.  Indemnity    to    several. 

§  2777.  Person  indemnifying  liable  jointly  or  severally  with 

persons  indemnified. 

§  2778.  Rules  for  interpreting  agreement  of  indemnity. 

§  2779.  When    person    indemnifying    is    a    surety. 

§  2780.  Bail,   what. 

§  2781.  How  regulated. 

§  2772.  Indemnity  is  a  contract  by  which  one 
engages  to  save  another  from  a  legal  consequence 
of  the  conduct  of  one  of  the  parties,  or  of  some 
other  person. 


567  INDEMNITY.  §§  2773-2778 

§  2773.  Au  agreement  to  indemnify  a  person 
against  an  act  thereafter  to  be  done  is  void,  if  the 
act  be  known  by  such  person,  at  the  time  of  doing 
it,  to  be  unlawful.  [Amendment,  approved  March 
80,  1874;  Amendments  1873-4,  259.  In  effect  July 
1,  1874.] 

§  2774.  An  agreement  to  indemnify  a  person 
against  an  act  already  done  is  valid,  even  though 
the  act  was  known  to  be  wrongful,  unless  it  was 
a  felony. 

§  2775.  An  agreement  to  indemnify  against  the 
acts  of  a  certain  person  applies  not  only  to  his  acts 
and  their  consequences,  but  also  to  those  of  his 
agents. 

§  2776.  An  agreement  to  indemnify  several  per- 
sons applies  to  each,  unless  a  contrary  intention 
appears. 

§  2777.  One  who  indemnifies  another  against 
an  act  to  be  done  by  the  latter,  is  liable  jointly 
with  the  person  indemnified,  and  separately  to  ev- 
ery person  injured  by  such  act. 

§  2778.  In  the  interpretation  of  a  contract  of 
indemnity,  the  following  rules  are  to  be  applied, 
unless  a  contrary  intention  appears. 

1.  Upon  an  indemnity  against  liability,  express- 
ly, or  in  other  equivalent  terms,  the  person  indem- 
nified is  entitled  to  recover  upon  becoming  liable; 

2.  Upon  an  indemnity  against  claims,  or  de- 
mands, or  damages,  or  costs,  expressly,  or  in  other 
equivalent  terms,  the  person  indemnified  is  not  en- 
titled to  recover  without  payment  thereof; 

3.  An  indemnity  against  claims,  or  demands,  or 
liability,  expressly,  or  in  other  equivalent  terms, 
embraces  the  costs  of  defence  against  such  claims, 
demands,  or  liability  incurred  in  good  faith,  and 
in  the  exercise  of  a  reasonable  discretion; 


§§  2779-2781  INDEMNITY.  568 

4.  The  person  iudemnifying  is  bound,  on  re- 
quest of  the  person  indemnified,  to  defend  actions 
or  proceedings  brought  against  the  latter  in  re- 
spect to  the  matters  embraced  by  the  indemnity, 
but  the  person  indemnified  has  the  right  to  con- 
duct such  defences,  if  he  chooses  to  do  so; 

5.  If,  after  request,  the  person  indemnifying  ne- 
glects to  defend  the  person  indemnified,  a  recov- 
ery against  the  latter,  suffered  by  him  in  good 
faith,  is  conclusive  in  his  favor  against  the  for- 
mer; 

(3.  If  the  person  indemnifying,  whether  he  is  a 
principal  or  a  surety  in  the  agreement,  has  not 
reasonable  notice  of  the  action  or  proceeding 
against  the  person  indemnified,  or  is  not  allowed 
to  control  its  defence,  judgment  against  the  latter 
is  only  presumptive  evidence  against  the  former; 

7.  A  stipulation  that  a  judgment  against  the 
person  indemnified  shall  be  conclusive  upon  the 
person  indemnifying,  is  inapplicable  if  he  had  a 
good  defence  upon  the  merits,  which  by  want  of 
ordinary  care  he  failed  to  establish  in  the  action. 

§  2779.  Where  one,  at  the  request  of  another, 
engages  to  answer  in  damages,  whether  liquidat- 
ed or  unliquidated,  for  any  violation  of  duty  on  the 
part  of  the  latter,  he  is  entitled  to  be  reimbursed 
in  the  same  manner  as  a  surety,  for  whatever  he 
may  pay. 

§  2780.  Upon  those  contracts  of  indemnity 
which  are  taken  in  legal  proceedings  as  security 
for  the  performance  of  an  obligation  imposed  or 
declared  by  the  tribunals,  and  linown  as  under- 
takings or  recognizances,  the  sureties  are  called 
bail. 

§  2781.  The  obligations  of  bail  are  governed 
by  the  statutes  specially  applicable  thereto. 


569 

GUARANTY.                            §§  2787-2792 

TITLE   XIII. 

GUARANTY. 

Chapter  I. 
II. 

Guaranty  iu  General,   §§   2787-2825. 
Siiretysliip,    §§   2831-2866. 

CHAPTER  I. 

GUARANTY  IN  GENERAL. 

Article  I.  Definition   of  Guaranty,    §§  2787-2788. 

II.  Creation  of  Guaranty,   §§  2792-2795. 

III.  Interpretation   of   Guaranty,    §§   2799-2802. 

IV.  Liability  of  Guarantors.   §§  2806-2810. 
V.  Continuing  Guaranty,  §§  2814-2815. 

VI.    Exoneration  of   Guarantors,   §§  2819-2825. 

ARTICLE  I. 

DEFINITION   OF   GUARANTY. 

§  2787.     Guaranty,   what. 

§  2788.     Knowledge  of  principal  not  necessary  to  creation  of 
guaranty. 

§  2787.  A  guaranty  is  a  promise  to  answer  for 
the  debt,  default,  or  miscarriage  of  another  per- 
son:   Stats.  1850,  266,  sec.  12. 

§  2788.  A  person  may  become  guarantor  even 
without  the  knowledge  or  consent  of  the  principal. 


ARTICLE  II. 


CREATION  OF  GUARANTY. 

§  2792.     Necessity  of  a  consideration. 

§  2793.     Guaranty  to  be  in  writing,  &c. 

I  2794.    Engagement   to    answer   for    obligation    of   another, 

when  deemed  original. 
§  2795.    Acceptance    of   guaranty. 

§  2792.    Where  a  guaranty  is  entered  into  at 
the  same  time  with  the  original  obligation,  or  with 


§§2793,2794  GUARANTY.  570 

the  acceptance  of  the  hitter  by  the  guarantee,  and 
forms  with  that  oblis'atiou  a  part  of  the  considera- 
tion to  him,  no  other  consideration  need  exist.  In 
all  other  cases  there  must  be  a  consideration  dis- 
tinct from  that  of  the  original  obligation. 

§  2793.  Except  as  prescribed  by  the  next  sec- 
tion, a  guaranty  must  be  in  writing,  and  signed 
by  the  guarantor;  but  the  writing  need  not  ex- 
press a  consideration. 

§  2794.  A  promise  to  answer  for  the  obligation 
of  another,  in  any  of  the  following  cases,  is  deem- 
ed an  original  obligation  of  the  promisor,  and  need 
not  be  in  writing: 

1.  Where  the  promise  is  made  by  one  who  has 
received  property  of  another  upon  an  undertak- 
ing to  apply  it  pursuant  to  such  promise;  or  by 
one  who  has  received  a  discharge  from  an  obliga- 
tion in  whole  or  in  part,  in  consideration  of  such 
promise; 

2.  Where  the  creditor  parts  with  value,  or  en- 
ters into  an  obligation,  in  consideration  of  the  ob- 
ligation, in  respect  to  which  the  promise  is  made, 
in  terms  or  under  circumstances  such  as  to  render 
the  party  making  the  promise  the  principal  debt- 
or, and  the  person  in  whose  behalf  it  is  made,  his 
surety ; 

3.  AVhere  the  promise,  being  for  an  antecedent 
obligation  of  another,  is  made  upon  the  considera- 
tion that  the  party  receiving  it  cancels  the  ante- 
cedent obligation,  accepting  the  new  promise  as 
a  substitute  therefor:  or  upon  the  consideration 
that  the  party  receiving  it  releases  the  property  of 
another  from  a  levy,  or  his  person  from  imprison- 
ment under  an  execution  on  a  judgment  obtained 
upon  the  antecedent  obligation,  or  upon  a  consider- 
ation beneficial  to  the  promisor,  whether  moving 
from  either  party  to  the  antecedent  obligation,  or 
from  another  person; 


.^71  GUARANTY  §§  2795-2801 

4.  Wliere  a  factor  undertakes,  for  a  commis- 
sion, to  sell  merchandise  and  guaranty  the  sale; 

5.  AY  here  the  holder  of  an  instrument  for  the 
payment  of  money,  upon  which  a  third  person  is 
or  may  become  liable  to  him,  transfers  it  in  pay- 
ment of  a  precedent  debt  of  his  own,  or  for  a  new 
consideration,  and  in  connection  with  such  trans- 
fer enters  into  a  promise  respecting  such  instru- 
ment. 

§  2795.  A  mere  offer  to  guaranty  is  not  bind- 
ing, until  notice  of  its  acceptance  is  communicated 
by  the  guarantee  to  the  guarantor;  but  an  absolute 
guaranty  is  binding  upon  the  guarantor  without 
notice  of  acceptance. 

Absolute  guaranty:    See  sec.  280G,  post. 


ARTICLE  III. 

INTERPRETATION    OF    GUARANTY. 

I  2799.  Guaranty   of  incomplete   contract. 

§  2800.  Guaranty  that  an  obligation  is  good  or  collectible. 

§  2801.  Recovery  upon  such  guaranty. 

§  2S02.  Guarantor's  liability  upon  such  guaranty. 

§  2799.  In  a  guaranty  of  a  contract,  the  terms 
of  which  are  not  then  settled,  it  is  implied  that 
its  terms  shall  be  such  as  will  not  expose  the 
guarantor  to  greater  risks  than  he  would  incur 
under  those  terms  which  are  most  common  in 
similar  contracts  at  the  place  where  the  principal 
contract  is  to  be  performed. 

§  2800.  A  guaranty  to  the  effect  that  an  obli- 
gation is  good,  or  is  collectible,  imports  that  the 
debtor  is  solvent,  and  that  the  demand  is  collec- 
tible by  the  usual  legal  proceedings,  if  taken  with 
reasonable  diligence. 

§  2801.    A  guaranty,   such   as  is   mentioned   in 


§§  2802-2808  GUARANTY.  572 

the  last  section,  is  not  discharged  by  an  omission 
to  take  proceedings  upon  the  principal  debt,  or 
upon  any  collateral  security  for  its  payment,  if  no 
part  of  the  debt  could  have  been  collected  there- 
by. 

§  2802.  In  the  cases  mentioned  in  section  2800, 
the  removal  of  the  principal  from  the  State,  leav- 
ing no  property  therein  from  which  the  obligation 
might  be  satisfied,  is  equivalent  to  the  insolvency 
of  the  principal  in  its  effect  upon  the  rights  and 
obligations  of  the  guarantor. 


ARTICLE  IV. 
LIABILITY  OF  GUARANTORS. 

§  2806.     Guaranty,   how   construed. 

§  2807.  Liability  upon  guaranty  of  payment  or  perform- 
ance. 

§  2808.     Liability  upon  guaranty  of  a  conditional  obligation. 

§  2809.  Obligation  of  guarantor  cannot  exceed  that  of  the 
principal. 

§  2810.    Guarantor  not  liable  on  an  illegal  contract. 

§  2806.  A  guaranty  is  to  be  deemed  uncondi- 
tional unless  its  terms  import  some  condition  pre- 
cedent to  the  liabilitj'-  of  the  guarantor. 

§  2807.  A  guarantor  of  payment  or  perform- 
ance is  liable  to  the  guarantee  immediately  upon 
the  default  of  the  principal,  and  without  demand 
or  notice. 

§  2808.  Where  one  guarantees  a  conditional  ob- 
ligation, his  liability  is  commensurate  with  that  of 
the  principal,  and  he  is  not  entitled  to  notice  of  the 
default  of  the  principal,  unless  he  is  unable,  by 
the  exercise  of  reasonable  diligence,  to  acquire  in- 
formation of  such  default,  and  the  creditor  has 
actual  notice  thereof. 


:>-?.  GUARANTY.  §§  2809-2815 

§  2809.  The  obligation  of  a  guarantor  must  be 
neither  larger  in  amount  nor  in  other  respects 
more  burdensome  than  that  of  the  principal;  and 
if  in  its  terms  it  exceeds  it,  it  is  reducible  in  pro- 
portion to  the  principal  obligation. 

§  2810.  A  guarantor  is  not  liable  if  the  con- 
tract of  the  principal  is  unlawful;  but  he  is  liable 
notwithstanding  any  mere  personal  disability  of 
the  principal,  though  the  disability  be  such  as  to 
mal^e  the  contract  void  against  the  principal. 


ARTICLE  V. 

CONTINUING  GUARANTY. 

§  2814.     Continuing  guaranty,   what. 
§  2815.    Revocation. 

§  2814.  A  guaranty  relating  to  a  future  liabil- 
ity of  the  principal,  under  successive  transactions, 
which  either  continue  his  liability  or  from  time 
to  time  renew  it  after  it  has  been  satisfied,  is  call- 
ed a  continuing  guaranty. 

§  2815.  A  continuing  guaranty  may  be  revoked 
at  any  time  by  the  guarantor,  in  respect  to  future 
transactions,  unless  there  is  a  continuing  consider- 
ation as  to  such  transactions  which  he  does  not  re- 
nounce:   Sec.  1629,  ante. 


§§  2819-2821  GUARANTY.  574 

ARTICLE  VI. 

EXONERATION  OF  GUARANTORS. 

§  2819.    What  dealings  with   debtor  exonerate  guarantor. 

§  2820.    Void  promises. 

§  2821.     Rescission  of  alteration. 

§  2822.    Part  performance. 

§  2823.     Delay  of  creditor  does  not  discharge  guarantor. 

§  2824.  Guarantor  indemnified  by  the  debtor,  not  exoner- 
ated. 

§  2825.  Discharge  of  principal  by  act  of  law  does  not  dis- 
charge guarantor. 

§  2819.  A  guarantor  is  exonerated,  except  so 
far  as  he  may  be  indemnified  by  the  principal, 
if  by  anj'  act  of  the  creditor,  without  the  consent 
of  the  guarantor,  the  original  obligation  of  the 
principal  is  altered  in  any  respect,  or  the  remedies 
or  rights  of  the  creditor  against  the  principal,  in 
respect  thereto,  in  any  way  Impaired  or  sus- 
pended. 

See  sees.  2S0G  et  seq. 

Rights  of  creditor  where  security  given:  See  sec. 
2854,  post. 

Forbearance  will  not  discharge:    Sec.  2823. 

Neglect  or  refusal  to  sue  after  request  will  dis- 
charge:    Sec.   2845,   post. 

Who  are  sureties:    See  sec.  2832,  post. 

Discharge  of  surety  by  alteration  of  principal's 
contract:  See  sec.  2821. 

§  2820.  A  promise  by  a  creditor,  which  for  any 
cause  is  void,  or  voidable  by  him  at  his  option, 
does  not  alter  the  obligation  or  suspend  or  impair 
the  remedy,  within  the  meaning  of  the  last  sec- 
tion. 

§  2821.  The  rescission  of  an  agreement  alter- 
ing the  original  obligation  of  a  debtor,  or  impair- 
ing the  remedy  of  a  creditor,  does  not  restore  the 


.-j75  guaranty.  §§  2822-2825 

liability  of  a  guarantor  who  has  been  exonerated 
by  such  agreement. 

§  2822.  The  acceptance,  by  a  creditor,  of  any- 
thing iu  partial  satisfaction  of  an  obligation,  re- 
duces the  obligation  of  a  guarantor  thereof,  in  the 
same  measure  as  that  of  the  principal,  but  does 
not  otherwise  affect  it. 

Note.— Part  performance  of  the  obligation,  ex- 
pressly accepted  by  the  creditor  in  writing,  would 
extinguish  the  obligation  of  the  debtor,  and  there- 
fore that  of  the  surety:  See  sees.  1523,  1524. 

§  2823.  Mere  delay  on  the  part  of  a  creditor  to 
proceed  against  the  principal,  or  to  enforce  any 
other  remedy,  does  not  exonerate  a  guarantor. 

Notice  to  creditor  to  sue:    See  post,  see.  2845. 

§  2824.  A  guarantor,  who  has  been  Indemnified 
by  the  principal,  is  liable  to  the  creditor  to  the 
extent  of  the  indemnity,  notwithstanding  that  the 
creditor,  without  the  assent  of  the  guarantor,  may 
have  modified  the  contract  or  released  the  princi- 
pal. 

See  sec.  2819  and  sec.  2794,  subd.  1,  ante. 

§  2825.  A  guarantor  is  not  exonerated  by  the 
discharge  of  his  principal  by  operation  of  law, 
without  the  intervention  or  omission  of  the  credi- 
tor. 


CHAPTER  II. 

SURETYSHIP. 

Article  I.  Who  are   Sureties,   §§  2831-2832. 

II.  Liability  of  Sureties,   §§  2836-2840. 

III.  Rights  of  Sureties,   §§  2844-28-50. 

rv.  Rights  of  Creditors,  §  28-54. 

V.  Letter  of  Credit.  §§  2859-2866. 


§§  2831-2837  GUARANTY.  576 

ARTICLE  I. 

WHO  ARE  SURETIES. 

§  2831.     Surety,   what. 

§  2832.    Apparent  principal  may  show  that  he  is  surety. 

§  2831.  A  surety  is  one  who  at  the  request  of 
another  aud  for  the  purpose  of  securing  to  him  a 
benefit,  becomes  responsible  for  the  performance 
by  the  latter  of  some  act  in  favor  of  a  third  per- 
son, or  hypothecates  property  as  security  therefor. 

Distinction  between  sureties  and  guarantors: 
See  sees.  2807.  2S08. 

§  2832.  One  who  appears  to  be  a  principal, 
whether  by  the  terms  of  a  written  instrument  or 
otherwise,  may  show  that  he  is  in  fact  a  surety, 
except  as  against  persons  who  have  acted  on  the 
faith  of  his  apparent  character  of  principal. 


ARTICLE  II. 

LIABILITY  OP  SURETIES. 

§  2836.     Limit  of  surety's  obligation. 

§  2837.     Rules  of  interpretation. 

§  2838.  Judgment  against  surety  does  not  alter  the  re- 
lation. 

§  2839.  Surety  exonerated  by  performance  or  offer  of  per- 
formance. 

§  2840.    Surety  discharged  by  certain  acts  of  the  creditor. 

§  2836.  A  surety  cannot  be  held  beyond  the 
express  terms  of  his  contract,  and  if  such  con- 
tract prescribes  a  penalty  for  its  breach,  he  can- 
not in  any  case  be  liable  for  more  than  the  pen- 
alty. 

§  2837.    In  interpreting  the  terms  of  a  contract 


577  GUARANTY.  §§  2838-2840 

of  suretyship,  the  same  rules  are  to  be  observed 
as  in 'the  case  of  other  contracts. 

§  2838.  Notwithstanding-  the  recovery  of  judg- 
ment by  a  creditor  against  a  surety,  the  latter  still 
occupies  the  relation  of  surety. 

§  2839.  Performance  of  the  principal  obliga- 
tion, or  an  offer  of  such  performance,  duly  made 
as  provided  in  this  Code,  exonerates  a  surety. 
[Amendment,  approved  March  30,  1874;  Amend- 
ments 1873-4,  260.    In  effect  July  1,  1874.] 

See  sees.  1485-1505,  ante. 

§  2840.    A  surety  is  exonerated: 

1.  In  like  manner  with  a  guarantor; 

2.  To  the  extent  to  which  he  is  prejudiced  by 
any  act  of  the  creditor  which  would  naturally 
prove  injurious  to  the  remedies  of  the  surety  or  in- 
consistent with  his  rights,  or  which  lessens  his 
security;  or, 

3.  To  Che  extent  to  which  he  is  prejudiced  by 
an  omission  of  the  creditor  to  do  anything,  when 
required  by  the  surety  which  it  is  his  duty  to  do. 

Subd.  1:    See  sec.  2819. 
Subd.  3:  See  sec.  2845. 

Civ.    Code.— 49. 


§§  2844-2847  GUARANTY.  578 

AltTlCLE  III. 

RIGHTS  *0F  SURETIES. 

§  2844.     Surety  has  rights  of  guarantor. 

§  2845.  Surety  may  require  the  creditor  to  proceed  against 
the  principal. 

§  2846.  Surety  may  compel  principal  to  perform  obliga- 
tions, when  due. 

§  2847.    A  principal  bound  to  reimburse  his  surety. 

§  2848.     The  surety  acquires  the  right  of  the  creditor. 

§  2849.  Surety  entitled  to  benefit  of  securities  held  by 
creditor. 

S  2850.     The  property  of  principal  to  be  taken  first. 

§  2844.  A  surety  lias  all  the  rights  of  a  guar- 
autor.  whether  he  become  personally  responsible 
or  not. 

See  sees.  28U8-2810. 

§  2845.  A  surety  may  require  his  creditor  to 
proceed  against  the  principal,  or  to  pursue  any 
other  remedy  in  his  power  which  the  surety  can- 
not himself  pursue,  and  which  would  lighten  his 
burden:  and  if  in  such  case  the  creditor  neglects 
to  do  so.  the  surety  is  exonerated  to  the  extent 
to  which  he  is  thereby  prejudiced. 

Mere  delay  by  the  creditor  to  pursue  the  prin- 
cipal does  not  discharge  the  surety,  is  the  rule 
recognized  by  section  2823:  See  sec.  284U,  subd.  1. 

§  2846.  A  surety  may  compel  his  principal  to 
perform  the  obligation  when  due. 

The  action  under  this  section  is  provided  for  in 
section  1050,  Code  of  Civil  Procedure. 

Section  2845,  ante,  may  be  considered  as  con- 
taining another  substitute  for  the  equitable  ac- 
tion. 

§  2847.  If  a  surety  satisfies  the  principal  obli- 
gation or  any  part  thereof,  whether  with  or  with- 


67y  GUARANTY.  SS  2848-2854 

out  legal  proceediu!4-8.  the  priuciyal  is  bound  to  re- 
imburse what  he  has  disbursed,  includiug  neces- 
sary costs  and  expenses;  but  the  surety  has  no 
claim  for  reimbtirsement  against  other  persons, 
though  they  may  have  been  benefited  by  his  act, 
except  as  prescribed  by  the  next  section. 

^  2848,  A  surety,  tipon  satisfying  the  obliga- 
tion of  the  principal,  is  entitled  to  enforce  every 
remedy  which  the  creditor  then  has  against  the 
principal  to  the  extent  of  reimbursing  what  he 
has  expended,  and  also  to  reqtiire  all  his  co-sure- 
ties to  contribute  thereto,  without  regard  to  the 
order  of  time  in  which  they  became  such. 

§  2849.  A  surety  is  entitled  to  the  benefit  of 
every  security  for  the  performance  of  the  princi- 
pal obligation  held  by  the  creditor,  or  by  a  co- 
surety at  the  time  of  entering  into  the  contract  of 
suretyship,  or  acquired  by  him  afterwards,  wheth- 
er the  surety  was  aware  of  the  security  or  not. 

§  2850.  Whenever  property  of  a  surety  is  hy- 
pothecated with  property  of  the  principal,  the 
surety  is  entitled  to  have  the  property  of  the  prin- 
cipal first  applied  to  the  discharge  of  the  obliga- 
tion. 

ARTICLE  IV. 

RIGHTS   OF    CREDITORS. 

$  2854.     Creditor    entitled    to    benefit     of    securities    held    by 
surety. 

S  2854.  A  creditor  is  entitled  to  the  benefit  of 
everything  which  a  surety  has  received  from  the 
debtor  by  way  of  security  for  the  performance  of 
the  obligation,  and  may,  upon  the  maturity  of  the 
obligation,  compel  the  application  of  such  security 
To  its  satisfaction. 


§§  2858-2863  GUARANTY.  580 

ARTICLE  V. 

LETTER  OF   CREDIT. 

§  2858.  Letter   of  credit,   what. 

§  2859.  How  addressed. 

§  2830.  Liability  of   the  writer. 

§  2861.  Letters  of  credit,   either  general  or  special. 

§  2862.  Nature  of  general  letter  of  credit. 

§  2863.  Extent  of   general   letter   of   credit. 

§  2864.  A  letter  of  credit  may  be  a  continuing  guaranty. 

§  2865.  When  notice  to  the  writer  necessary. 

§  2866.  The  credit  given  must  agree  with  the  terms  of  the 
letter. 

§  2858.  A  letter  of  credit  is  a  written  instru- 
ment, addressed  by  one  person  to  another,  re- 
questing the  latter  to  give  credit  to  the  person  in 
whose  favor  it  is  drawn. 

S  2859.  A  letter  of  credit  may  be  addressed  to 
several  persons  in  succession. 

§  2860.  The  writer  of  a  letter  of  credit  is,  upon 
the  default  of  the  debtor,  liable  to  those  who  gave 
credit  in  compliance  with  its  terms. 

§  2861.  A  letter  of  credit  is  either  general  or 
special.  When  the  request  for  credit  in  a  letter  is 
addressed  to  specified  persons  by  name  or  descrip- 
tion, the  letter  is  special.  All  other  letters  of  credit 
are  general. 

Credit  to  correspond  witli  terms  of  the  letter: 
See  sec.  2866,  post. 

§  2862.  A  general  letter  of  credit  gives  any 
person  to  whom  it  may  be  shown  authority  to 
comply  with  its  request,  and  by  his  so  doing  it  be- 
comes, as  to  him,  of  the  same  effect  as  if  ad- 
dressed to  him  by  name. 

§  2863.  Several  persons  may  successively  give 
credit  upon  a  general  letter. 


581 


I.IBN. 


2864-2866 


§  2864.  If  the  parties  to  a  letter  of  credit  ap- 
pear, by  its  terms,  to  contemplate  a  course  of  fu- 
ture dealing  between  the  parties,  it  is  not  ex- 
hausted by  giving  a  credit,  even  to  the  amount 
limited  by  the  letter,  which  is  subsequently  re- 
duced or  satisfied  by  payments  made  by  the  debt- 
or, but  is  to  be  deemed  a  continuing  guaranty. 

§  2865.  The  writer  of  a  letter  of  credit  is  liable 
for  credit  given  upon  it  without  notice  to  him,  un- 
less its  terms  express  or  imply  the  necessity  of 
giving  notice. 

§  2866.  If  a  letter  of  credit  prescribes  the  per- 
sons by  whom,  or  the  mode  in  which,  the  credit  is 
to  be  given,  or  the  term  of  credit,  or  limits  the 
amount  thereof,  the  writer  is  not  bound  except 
for  transactions  which,  in  these  respects,  con- 
form strictlv  to  the  terms  of  the  letter. 


TITLE  XIV. 
LIEN. 

Chapter  I.  Liens  in  General,  §$  2872-2913. 

II.  Mortgage,  §§  2920-2971. 

III.  Pledge,  §§  2986-3011. 

IV.  Bottomry,  §§  3017-3029. 

V.    Respondentia,  §§  3036-3040. 
VI.    Other  Liens,  §§  3046-3060. 
VII.    Stoppage  in  Transit,  §§  3076-8080. 


CHAPTER  I. 

LIENS   IN   GENERAL. 

Article  I.  Definition  of  Liens,   5§  2872-2877. 

II,  Creation  of  Liens,  §§  2S81-2SS4. 

III.  Effect  of  Liens,    §§   2SSS-2S92. 

IV.  Priority  of  Liens,  §§  2S97-2899. 

V.     Redemption  from  Liens,   §§  2903-2905. 
VI.     Extinction  of  Liens,  §§  2909-2913. 


§§  2872-2876  T^IEN.  582 

AKTICLE  I. 

DEFINITION    OF    LIEN8 

S  2872.  Lien,    what. 

§  2873.  Liens,  general  or  special. 

§  2874.  General  lien,  what. 

S  2875.  Special  lien,  what. 

§  2876.  Prior   liens. 

§  2877.  Contracts  subject  to  provisions  of  this  chapter. 

§  2872.  A  lien  is  a  charge  imposed  in  some 
mode  other  than  by  a  transfer  in  trust  upon  spe- 
cific property,  by  which  it  is  made  security  for  the 
performance  of  an  act.  [Amendment  approved 
February  15,  1878;  Amendments  1877-8,  88.  In 
effect  April  16,  1878.] 

Compare  Code  Civ.  Proc,  sec.  1180. 

§  2873.    Liens  are  either  general  or  special. 

§  2874.  A  general  lien  is  one  which  the  holder 
thereof  is  entitled  to  enforce  as  a  security  for  the 
performance  of  all  the  obligations,  or  all  of  a 
particular  class  of  obligations,  which  exist  in  his 
favor  against  the  owner  of  the  property. 

Factors. — Usage  of  trade  usually  gives  factors  a 
general  lien,  which  is  establislied  in  this  State  by 
section  3053,  post. 

Banker:   Sec.  3054,  post. 

Master  of  ship:    Sec.  3055,  post. 

Mate  and  seamen:  Sec.  3056,  post;  post,  also. 
Appendix,  pp,  743  et  seq.;  790. 

Lien  for  services:    See  sec.  3051,  post. 

§  2875.  A  special  lien  is  one  which  the  holder 
thereof  can  enforce  only  as  security  for  the  per- 
formance of  a  particular  act  or  obligation,  and  of 
such  obligations  as  may  be  incidental  thereto. 

Incidental  thereto:    See  next  section. 

S  2876.    Wliere  the  holder  of  a  special  lien  is 


583  LIEN.  §5  2877-28S4 

compelled  to  satisfy  a  prior  lien  for  his  own  pro- 
tection, he  may  enforce  payment  of  the  amount 
so  paid  by  him,  as  a  part  of  the  claim  for  which 
his  own  lien  exists. 

S  2877.  Contracts  of  mortgage,  pledge,  bot- 
tomry, or  respondentia,  are  subject  to  all  the  pr*^ 
visions  of  this  chapter. 


ARTICLE    II. 

CREATION  OF  LIENS. 

?  2881.  Lien,  how  created. 

I  2882.  No  lien  for  claim  not  due. 

S  2883.  Lien  on  future   interest. 

§  2884.  Lien  may  be  created  by  contract. 

s^  288 1.    A  lien  is  created: 

1.  By  contract  of  the  parties;  or, 

2.  By  operation  of  law. 

§  2882.  No  lien  arises  by  mere  operation  of 
law  until  the  time  at  which  the  act  to  be  secured 
Thereby  ought  to  be  performed. 

§  2883.  An  agreement  may  be  made  to  create  a 
lien  upon  property  not  yet  acquired  by  the  party 
agreeing  to  give  the  lien,  or  not  yet  in  existence. 
In  such  case  the  lien  agreed  for  attaches  from 
the  time  when  the  party  agreeing  to  give  it  ac- 
quires an  interest  in  the  thing,  to  the  extent  of 
such  interest. 

^  2884.  A  lieu  may  be  created  by  contract,  to 
take  immediate  effect,  as  security  for  the  per- 
formance of  obligations  not  then  in  existence. 

Retention  of  possession  no  evidence  of  fraud: 
See  note  sec.  2920. 


§§  2888-2892  LIEN.  584 

ARTICLE  III. 

EFFECT    OF    LIENS. 

§  2888.  Lien,  or  contract  for  lien,  transfers  no  title. 

§  2889.  Certain   contracts  void. 

§  2890.  Creation  of  lien  does  not  imply  personal  obligation. 

§  2891.  Extent   of   lien. 

§  2892.  Holder  of  lien  not  entitled  to  compensation. 

§  2888.  Notwithstanding  an  agreement  to  the 
contrary,  a  lien,  or  a  contract  for  a  lien,  trans- 
fers no  title  to  the  property  subject  to  the  lien. 

Sees.  2927,  2929,  2936,  post. 

§  2889.  All  contracts  for  the  forfeiture  of  prop- 
erty subject  to  a  lien,  in  satisfaction  of  the  obli- 
gation secured  thereby,  and  all  contracts  in  re- 
straint of  the  right  of  redemption  from  a  lien,  are 
void. 

§  2890.  The  creation  of  a  lien  does  not  of  itself 
imply  that  any  person  is  bound  to  perform  the 
act  for  which  the  lien  is  a  security. 

See  sees.  2909,  2928,  3000,  post. 

§  2891.  The  existence  of  a  lien  upon  property 
does  not  of  itself  entitle  the  person  in  whose  favor 
it  exists  to  a  lien  upon  the  same  property  for  the 
performance  of  any  other  obligation  than  that 
which  the  lien  originally  secured. 

§  2892.  One  who  holds  proi^erty  by  virtue  of  a 
lien  thereon,  is  not  entitled  to  compensation  from 
the  owner  thereof  for  any  trouble  or  expense 
which  he  incurs  respecting  it,  except  to  the 
same  extent  as  a  borrower,  under  sections  1892 
and  1893. 


585  LIEN.  §§  2897-2899 

ARTICLE   IV. 

PRIORITY  OF  LIENS. 

I  2897.    Priority  of  liens. 

§  2898.     Priority  of  mortgage   for  price. 

I  2899.     Order  of  resort  to  different  funds. 

§  2897.  Other  things  being  equal,  different  liens 
upon  the  same  property  have  priority  according 
to  the  time  of  their  creation,  except  in  cases  of 
bottomry  and  respondentia. 

§  2898.  A  mortgage  given  for  the  price  of  real 
property,  at  the  time  of  its  conveyance,  has  prior- 
ity over  all  other  liens  created  against  the  pur- 
chaser, subject  to  the  operation  of  the  recording 
laws. 

§  2899.  Where  one  has  a  lien  upon  several 
things,  and  other  persons  have  subordinate  liens 
upon,  or  interests  in,  some  but  not  all  of  the  same 
things,  the  person  having  the  prior  lieu,  if  he 
can  do  so  without  risk  of  loss  to  himself,  or  of 
injustice  to  other  persons,  must  resort  to  the  prop- 
erty in  the  following  order  on  the  demand  of  any 
party  interested: 

1.  To  the  things  upon  which  he  has  an  exclusive 
lien; 

2.  To  the  things  which  are  subject  to  the  few- 
est subordinate  liens; 

3.  In  like  manner  inversely  to  the  number  of 
subordinate  liens  upon  the  same  thing;  and, 

4.  When  several  things  are  within  one  of  the 
foregoing  classes,  and  subject  to  the  same  number 
of  liens,  resort  must  be  had:— 

(1.)  To  the  things  which  have  not  been  trans- 
ferred since  the  prior  lien  was  created; 

(2.)  To  the  things  which  have  been  so  trans- 
ferred without  a  valuable  consideration;  and. 


§§  2903-2905  LIEN.  586 

^3.)  To  the  things  which  have  been  so  trans- 
ferred for  a  valuable  consideration  in  the  inverse 
order  of  the  transfer. 


ARTICLE  Y. 

REDEMPTION  FROM  LIEN. 

§  2903.     Right  to  redeem. 

§  2904.     Rights  of  inferior  lienor. 

§  2905.     Redemption  from  lien,  how  made. 

§  2903.  Every  person,  having  an  interest  in 
property  subject  to  a  lien,  has  a  right  to  redeem 
it  from  the  lien,  at  any  time  after  the  claim  is  due, 
and  before  his  right  of  redemption  is  foreclosed. 

Redemptioners  from  execution  sale:  See  Code 
Civ.  Proc,  sees.  701  et  seq. 

Pledgor's  right  of  redemption  may  be  foreclosed: 
Sec.  3011,  post;  see  Code  Civ.  Proc,  sees.  701-707, 
346,  347. 

§  2904.  One  who  has  a  lien  inferior  to  another, 
upon  the  same  property,  has  n  right; 

1.  To  redeem  the  property  in  the  same  manner 
as  its  owner  might,  from  the  superior  lien;  and. 

2.  To  be  subrogated  to  all  the  benefits  of  the 
superior  lien,  when  necessary  for  the  protection 
of  his  interests,  upon  satisfying  the  claim  secured 
thereby. 

§  2905.  Redemption  from  a  lien  is  made  by 
performing  or  offering  to  perform,  the  act  for  the 
performance  of  which  it  is  a  security,  and  paying 
or  offering  to  pay,  the  damages,  if  any,  to  which 
the  holder  of  the  lien  is  entitled  for  delay. 

See  sec.  1490,  ante. 


587  LIEN.  §§  2909-2913 

ARTICLE.  VI. 

EXTINCTION  OF  LIENS. 

§  2909.  Lien  deemed  accessory  to  the  act  whose  perform- 
ance it  secures. 

§  2910.     Extinction  by  sale  or  conversion. 

§  2911.  Lien  extinguished  by  lapse  of  time  under  Statute 
of  Limitations. 

S  2912.    Apportionment  of  lien. 

§  2913.     When  restoration  extinguishes  lien. 

§  2909.  A  lien  is  to  be  deemed  aec^ssary  to  the 
act  for  the  performance  of  which  it  is  a  security, 
whether  any  person  is  bound  for  such  perform- 
ance or  not,  and  is  extinguishable  in  like  manner 
with  any  other  accessory  obligation. 

Assignment  of  debt:    See  sec.  2936,  post. 

$  2910.  The  sale  of  any  property  on  which 
there  is  a  lien,  in  satisfaction  of  the  claim  secured 
thereby,  or  in  case  of  personal  property,  its  wrong- 
ful conversion  by  the  person  holding  the  lien,  ex- 
tinguishes the  lien  thereon. 

§  2911.  A  lien  is  extinguished  by  the  lapse  of 
the  time  within  which,  under  the  provisions  of  the 
Code  of  Civil  Procedure,  an  action  can  be  brought 
upon  the  principal  obligation. 

See  sec  2922.  post.  Code  Civ.  Proc.  sees.  335- 
347. 

§  2912.  The  partial  performance  of  an  act  se- 
cured by  a  lien  does  not  extinguish  the  lien  upon 
any  part  of  the  property  subject  thereto,  even  if 
it  is  divisible. 

S  2913.  The  voluntary  restoration  of  property 
to  its  owner  by  the  holder  of  a  lien  thereon,  de- 
pendent upon  possession,  extinguishes  the  lien  as 
to  such  property,  unless  otherwise  agreed  by  the 
parties,  and  extinguishes  it.  notwithstanding  any 


§  2920  LIEN.  588 

such  agreemeut,  as  to  creditors  of  the  owner  and 
persons,  subsequently  acquiring  a  title  to  the  prop- 
erty, or  a  lien  thereon,  in  good  faith,  and  for  a 
good  consideration.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  260.  In  effect  July 
1,  1874.] 

A  third  person  may  act  as  pledge-holder:    Sees. 
2997,  2998,  post. 

CHAPTER  II. 

MORTGAGE. 

Article  I.     Mortgages   in   General,    §§   2920-2942. 

II.     Mortgages  of  Real  Property,   §§  2947-2952. 
III.     Mortgages   of  Personal  Property,   §§  2955-2971. 

ARTICLE  I. 

§  2920.  Mortgage,  what. 

§  2921.  Property  adversely  held  may  be  mortgaged. 

§  2922.  To  be  in  writing. 

§  2923.  Lien  of  a  mortgage,  when  special. 

§  2924.  Transfer  of  interest,  when  deemed  a  mortgage. 

§  2925.  Transfer  made  subject  to  defeasance  may  be  proved.. 

§  2926.  Mortgage  on  what  a  lien. 

§  2927.  Mortgage  does  not  entitle  mortgagee  to  possession. 

§  2928.  Mortgage   not   a  personal    obligation. 

§  2929.  Waste. 

§  2930.  Subsequently  acquired  title  enures  to  mortgagee. 

§  2931.  Foreclosure. 

§  2932.  Power  of  sale. 

§  2933.  Power  of  attorney  to  execute. 

§  2934.  Recording  assignment  of  mortgage. 

§  2935.  Recording  assignment  of  mortgage  not  notice  to 
mortgagor. 

§  2936.  Mortgage  passes  by  assignment  of  debt. 

§  2937.  Time  allowed  for  filing  mortgage  for  record.  (Re- 
pealed.) 

§  2938.  Mortgage,    how    discharged. 

§  2939.  Same. 

§  29391/^. Discharge  by  foreign  executors. 

§  2940.  Certificate  and  record  of  discharge. 

§  2941.  Duty  of  mortgagee  on  satisfaction  of  mortgage. 

§  2942.  Provisions  of  this  chapter  do  not  affect  bottomry 
or   respondentia. 

§  2920.    Mortgage  is  a  contract  by  which  spe- 
cific property  is  hypothecated  for  the  performance 


5S9  LIEN.  §§  2921-2925 

uf  au  act,  without  the  necessity  of  a  change  of 
possession. 

Note.— The  Code  substitutes,  instead  of  the  actu- 
al possession  previously  requisite,  the  recording 
provisioQS  of  sees.  2957,  2959,  2962,  2963,  2965,  and 
2966. 

Actual  transfer  of  possession  of  personalty 
would  change  it  into  a  pledge:   See  2924,  post. 

§  2921.  A  mortgage  may  be  created  upon  prop- 
erty held  adversely  to  the  mortgagor. 

This  provision  is  a  logical  sequence  of  section 
2947,  post,  and  section  1047,  ante. 

§  2922.  A  mortgage  can  be  created,  renewed, 
or  extended,  only  by  writing,  executed  with  the 
formalities  required  in  the  case  of  a  grant  of  real 
property. 

See  sec.  2948,  post. 

§  2923.  The  lien  of  a  mortgage  is  special,  un- 
less otherwise  expressly  agreed,  and  is  independ- 
ent of  possession. 

Special  lien.— For  definition,  see  sec.  2875. 

§  2924,  Every  transfer  of  an  interest  in  prop- 
erty, other  than  in  trust,  made  only  as  a  security 
for  the  performance  of  another  act,  is  to  be  deem- 
ed a  mortgage,  except  when  in  the  case  of  per- 
sonal property  it  is  accompanied  by  actiial  change 
of  possession,  in  which  case  it  is  deemed  a  pledge. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  260.    In  effect  July  1,  1874.] 

Deed  absolute  on  its  face,  when  a  mortgage:  See 
sees.  2924,  2950. 

§  2925.  The  fact  that  a  transfer  was  made  sub- 
ject to  defeasance  on  a  condition,  may,  for  the 
purpose  of  showing  such  transfer  to  be  a  mort- 
gage, be  proved  (except  as  against  a  subsequent 

Civ.  Code.— 50. 


SS  2926-293U  LIEN.  590 

purchaser  or  iucumbrancer  for  value  aud  without 
notice),  though  the  fact  does  not  appear  by  the 
terms  of  the  instrument. 

Deed  absolute  on  its  face  a  mortgage:  See  sees. 
2924,  2950. 

Recording  defeasance:  See  sec,  2950,  post. 

§  2926.    A  mortgage  is  a  lien  upon  everything 
that  would  pass  by  a  grant  of  the  property. 
Fixtures  generally:  See  ante,  sec.  660. 
Growing  crops:  See  sees.  2955,  2972. 

§  2927.  A  mortgage  does  not  entitle  the  mort- 
gagee to  the  possession  of  the  property,  unless  au- 
thorized by  the  express  terms  of  the  mortgage;  but 
after  the  execution  of  the  mortgage  the  mort- 
gagor may  agree  to  such  change  of  possession 
without  a  new  consideration. 

Mortgagee's  possession:  See  sees.  2920,  2923. 

§  2928.  A  mortgage  does  not  bind  the  mortga- 
gor personally  to  perform  the  act  for  the  perform- 
ance of  which  it  is  a  security,  unless  there  is  an 
express  covenant  therein  to  that  effect. 

§  2929.  No  person  whose  interest  is  subject  to 
the  lien  of  a  mortgage  may  do  any  act  which  will 
substantially  impair  the  mortgagee's  security. 

Damages  are  recoverable  by  the  purchaser  at 
the  sale,  for  injuries  to  the  property  by  the  tenant 
between  such  sale  and  the  delivery  of  the  deed, 
by  section  746  of  the  Code  of  Civil  Procedure. 

§  2930.  Title  acquired  by  the  mortgagor  subse- 
quent to  the  execution  of  the  mortgage  enures  to 
the  mortgagee  as  security  for  the  debt,  in  like 
manner  as  if  acquired  before  the  execution. 
[Amendment  approved  March  30.  1874:  Amend- 
ments 1873-4,  p,  260.    In  effect  July  1.  1874.] 

Sec.  1106.  ante. 


591  LIK:X.  §§  2931-2935 

§  2931.  A  mortgagee  may  foreclose  the  right  of 
redemption  of  the  mortgagor  in  the  manner  pre- 
scribed by  the  Code  of  Civil  Procedure. 

Foreclosure  of  mortgage.— Place  of  trial:  Code 
Civ.  Proc,  sec.  392:  receiver  may  be  appointed: 
Id.,  sec.  564;  proceedings  in  actions  for  foreclosure: 
Id.,  sec.  726;  remedy  exclusive:  Id.,  sec,  744;  sur- 
plus, how  disposed  of:  Id.,  sec.  727;  installment 
loans:  Id.,  sec,  728;  actions  against  estates:  Id., 
sec.  1500. 

S  2932.  A  power  of  sale  may  be  conferred  by 
a  mortgage  upon  the  mortgagee  or  any  other  per- 
son, to  be  exercised  after  a  breach  of  the  obliga- 
tion for  which  the  mortgage  is  a  security. 

Power  of  sale  assignable.— Power  of  sale  is  a 
part  of  the  security  and  passes  by  assignment  of 
the  debt:  Sec,  858,  ante, 

§  2933.  A  power  of  attorney  to  execute  a  mort- 
gage must  be  in  writing,  subscribed,  acknowl- 
edged, or  proved,  certified,  and  recorded  in  lil^e 
manner  as  powers  of  attorney  for  grants  of  real 
property. 

Authorizations  generally:  See  sec.  2309,  ante. 

§  2934.  An  assignment  of  a  mortgage  may  be 
recorded  in  like  manner  as  a  mortgage,  and  such 
record  operates  as  notice  to  all  persons  subse- 
quently deriving  title  to  the  mortgage  from  the 
assignor.  [Amendment  approved  March  30.  1874: 
Amendments  1873-4.  p.  261.  In  effect  July  1. 
1874.] 

S  2935.  When  the  mortgage  is  executed  as  se- 
curity for  money  due.  or  to  become  due.  on  a 
promissory  note,  bond,  or  other  instrument,  desig- 
nated in  the  mortgage,  the  record  of  the  assign- 
ment of  the  mortgage  is  not.  of  itself,  notice  to  a 
mortgagor,  his  heirs,  or  personal  representatives. 


1§  2936-2939^^  LIEN.  592 

SO  as  to  invalidate  any  payment  made  by  them,  or 
either  of  them,  to  the  person  holding  such  note, 
bond,  or  other  instrument.  [Amendment  approv- 
ed March  30,  1874:  Amendments  1873-4,  p.  261.  In 
effect  July  1,  1874.] 

§  2936.  The  assignment  of  a  debt  secured  by 
mortgage  carries  with  it  the  security. 

§  2937.     [Repealed    March    30,    1874;    Amend- 
ments 1873-4,  261.    In  effect  July  1,  1874.] 
See  sec.  858,  ante. 

§  2938.  A  recorded  mortgage  may  be  discharg- 
ed by  an  entry  in  the  margin  of  the  record  there- 
of, signed  by  the  mortgagee,  or  his  personal  rep- 
resentative or  assignee,  acknowledging  the  satis- 
faction of  the  mortgage  in  the  presence  of  the 
recorder,  who  must  certify  the  aclvuowledgment 
in  form  substantially  as  follows:  "Signed  and  ac- 

knowledged  before  me,  this day  of ,  in  the 

year  .  A  B,  Recorder." 

§  2939.  A  recorded  mortgage,  if  not  discharged 
as  provided  in  the  preceding  section,  must  be  dis- 
charged upon  the  record  by  the  officer  having  cus- 
tody thereof,  on  the  presentation  to  him  of  a  cer- 
tificate signed  by  the  mortgagee,  his  personal  rep- 
resentatives, or  assigns,  acknowledged  or  proved 
and  certified  as  prescribed  by  the  Chapter  on  Re- 
cording Transfers,  stating  that  the  mortgage  has 
been  paid,  satisfied,  or  discharged. 

§  2939^/1).  Foreign  executors  and  administra- 
tors may  satisfy  mortgages  upon  the  records  of  any 
county  in  this  State,  upon  producing  and  record- 
ing in  the  office  of  the  County  Recorder  of  the 
county  in  which  such  mortgage  is  recorded,  a  duly 
certified  and  authenticated  copy  of  their  letters 
testamentary  or  of  administration,  and  which  cer- 


:.03  LIEN.  §§  2940-2942 

tificate  yhall  also  recite  that  said  letters  have  not 
been  revolted.  [New  section  approved  March  8, 
1S95;  States.  1895,  p.  20.    In  effect  immediately.] 

§  2940.  A  certificate  of  the  discharge  of  a  mort- 
gage, and  the  proof  or  acknowledgment  thereof, 
must  be  recorded  at  length,  and  a  reference  made 
in  the  record  to  the  book  and  page  where  the  mort- 
gage is  recorded,  and  in  the  minute  of  the  dis- 
charge made  upon  the  record  of  the  mortgage  to 
the  book  and  page  where  the  discharge  is  re- 
corded. 

§  2941.  When  any  mortgage  has  been  satisfied, 
the  mortgagee  or  his  assignee  must  immediately, 
on  demand  of  the  mortgagor,  execute,  acknowl- 
edge, and  deliver  to  him  a  certificate  of  the  dis- 
charge thereof,  so  as  to  entitle  it  to  be  recorded, 
or  he  must  enter  satisfaction,  or  cause  satisfaction 
of  such  mortgage  to  be  entered  of  record,  and  any 
mortgagee,  or  assignee  of  such  mortgage,  who  re- 
fuses to  execute,  acknowledge,  and  deliver  to  the 
mortgagor  the  certificate  of  discharge,  or  to  enter 
satisfaction  or  cause  satisfaction  of  the  mortgage 
to  be  entered,  as  provided  in  this  chapter,  is  lia- 
ble to  the  mortgagor,  or  his  grantee  or  heirs,  for 
all  damages  which  he  or  they  may  sustain  by  rea- 
son of  such  refusal,  and  shall  also  forfeit  to  him 
or  them  the  sum  of  one  hundred  dollars.  [Amend- 
ment approved  April  1.5,  ISSO;  Amendments  1880, 
p.  10.    In  effect  April  15,  1880.] 

§  2942.  Contracts  of  bottomry  or  respondentia, 
although  in  the  nature  of  mortgages,  are  not  af- 
fected by  any  of  the  provisions  of  this  chapter. 

Bottomry:  See  sec.  3017,  post. 

Respondentia:  See  sec.  3036,  post. 


§S  2947-29o0  LIEN.  504 

AKTICLE  11. 

MORTGAGE  OF  REAL  PROPERTY. 

§  2947.    What  real  property  may  be  mortgaged. 

.^  2948.    Form  of  mortgage. 

.^  2949.    What  must  be  recorded  as  a  mortgage.     (Repealed.) 

S  2950.     Defeasance,    to    affect    grant   absolute     on    its   face, 

must  be  recorded. 
^  2951.     By  whom  paid  after  property  passes  by  succession 

or  will.     (.Repealed.) 
5  2952.     May  be  recorded. 

§  2947.    Any  interest  in  real  property  which  is 
capable  of  being  transferred  may  be  mortgaged. 
See  see.  1045,  ante. 

§  2948.  A  mortgage  of  real  property  may  be 
made  in  substantially  the  following  form: 

"This  mortgage,  made  the day  of ,  in  the 

year  ,  by  A  B,  of  ,  mortgagor,  to  C  D,  of 

,  mortgagee,  witnesseth: 

"That  the  mortgagor  mortgages  to  the  mortga- 
gee  [here  describe  the  property],  as  security  for 

the  payment  to  him  of dollars,  on  [or  before] 

the day  of ,  in  the  year ,  with  interest 

thereon  [or  as  security  for  the  payment  of  an  obli- 
gation, describing  it,  etc.]  A  B." 

Deed  absolute  in  form  construed  as  a  mortgage: 
See  sec.  2924.  ante. 

§  2949.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  2b2.     In  effect  July  1,  1874. 

S  2950.  AVhen  a  grant  of  real  property  purports 
to  be  an  absolute  conveyance,  but  is  intended  to 
be  defeasible  on  the  performance  of  certain  con- 
ditions, such  grant  is  not  defeated  or  affected  as 
against  any  person  other  than  the  grantee  or  his 
heirs  or  devisees,  or  persons  having  actual  notice, 
unless  an  instrument  of  defeasance,  duly  executed 


LIEN.  Sj  2lt31.  2952 

.iiid  ackuowledjied.  shall  have  been  recorded  in 
the  office  of  the  county  recorder  of  the  county 
^\  here  the  property  is  situated. 

See  sec.  1217,  ante. 

Deed  absolute  on  its  face,  when  a  mortgage:  See 
sees.  2924.  2925.  2950. 

Compare  with  sec.  2925,  ante. 

s^  2951.  [Repealed  March  30.  1874:  Amend- 
ments 1873-4.  262.    In  effect  July  1,  1874.] 

S  2952.  Mortgages  of  real  property  may  be 
acknowledged  or  proved,  certified  and  recorded,  in 
like  manner  and  with  like  effect  as  grants  there- 
of. [Amendment  approved  March  30,  1874; 
Amendments  1873-4.  p.  262.  In  effect  July  1. 
1S74.] 

See  sees.  11(59-1172  and  1213-1217,  ante. 

Fees  for  acknowledgment  and  recording:  Polit. 
("ode.  sees.  798,  4235,  4245. 

Mortgages  recorded  in  separate  set  of  books: 
Sec.  1171,  ante. 


§  2955  LIEN.  596 

ARTICLE  III. 

MORTGAGE    OF  PERSONAL  PROPERTY. 

§  2955.  What  personal  property  may  be  mortgaged. 

§  2956.  Form  of  personal  mortgage, 

§  2957.  When  void   as  to  third  persons. 

§  2958.  Mortgage  of  ships,  when  void  as  to  third  persons. 

§  2959.  Where  recorded. 

§  2960.  Property  in  transit,   where  to  be  recorded. 

§  2961.  Property  of  a  common  carrier,  where  to  be  recorded. 

§  2962.  Recorded  in  different  places. 

§  2963.  Personal  mortgage  may  be  recorded. 

§  2964.  Certified  copies  may  be  recorded,   when. 

§  2965.  Property  exempt  from  effect  of  mortgage,  when. 

§  2966.  May  be  taken  by  mortgagee  as  a  pledge,  when. 

§  2967.  How  foreclosed. 

§  2908.  Mortgage  property  may  be  levied  upon. 

§  2969.  Limitations  on  right  of  levy. 

§  2970.  Distribution  of  proceeds  of  sale  under  process. 

§  2971.  Sections  not  applicable  to  mortgage  of  certain  ships. 

§  2972.  Lien  of  a  mortgage  on  growing  crop. 

§  2955.  Mortgages  may  be  made  upon  the  fol- 
lowing personal  property,   and  none  other: 

First— Locomotives,  engines,  and  other  rolling- 
stock  of  a  railroad. 

Second— Steamboat  machinery,  the  maclynery 
used  by  machinist  foundrymen  and  mechanics. 

Third— Steam  engines  and  boilers. 

Fourth— Mining  machinery. 

Fifth— Printing  presses  and  material. 

Sixth— Professional  libraries. 

Seventh— Instruments  of  surveyors,  physicians, 
and  dentists. 

Eighth— Upholstery,  furniture,  and  household 
goods. 

Ninth— Oil  paintings,  pictures,  and  works  of 
art. 

Tenth— All  growing  crops,  including  grapes  and 
fruit. 

Eleventh— Vessels  of  more  than  five  tons  bur- 
den. 

Twelth— Instruments,  negatives,  furniture,  and 
fixtures  of  a  photograph  gallery. 


597  LIEN.  §  2936 

Thirteenth— The  machinery,  qasks,  pipes,  tubes, 
and  utensils  used  in  the  manufacture  or  storage 
of  wine,  fruit  brandy,  fniit  syrups,  or  sugar,  also 
Nvines,  fruit  brandy,  fruit  syrup,  or  sugar,  with 
the  cooperage  in  which  the  same  are  contained. 

Fourteenth— Pianos  and  organs. 

Fifteenth— Iron  and  steel  safes. 

Sixteenth— Neat  cattle,  horses,  mules,  swine, 
sheep,  and  goats,  and  the  increase  thereof. 

Seventeenth — Harvesters,  threshing  outfits,  hay 
presses,  wagons,  farming  implements,  and  the 
equipments  of  a  livery  stable,  including  buggies, 
carriages,  harness,  robes. 

Eighteenth— Abstract  systems,  books,  maps, 
papers,  and  slips  of  searchers  of  records. 

Nineteenth— Raisins  and  dried  fruits,  cured  or 
in  process  of  being  cured.  Also,  all  boxes,  fruit- 
graders,  drying-trays,  and  fruit-ladders.  [Amend- 
ment approved  March  9,  1897;  Stats.  1897,  ch. 
XCI.J 

This  section  was  also  amended  in  1895,  Stats. 
1895,  p.  48. 

Removal  of  property  from  mortgaged  premises, 
when  larceny :  See  Penal  Code,  sec.  502i^. 

Further  chattel  is  larceny:  See  Penal  Code,  sec. 
538. 

§  2956.  A  mortgage  of  personal  property  may 
be  made  in  substantially  the  following  form: 

"This  mortgage,  made  the day  of ,  in  the 

year ,  by  A   B,  of ,  by   occupation    a  , 

mortgagor,  to  C  D,  of  ,  by  occupation  a  , 

mortgagee,  witnesseth: 

"That  the  mortgagor  mortgages  to  the  mort- 
gagee [here  describe  the  property],  as  security  for 

the  payment  to  him  of dollars  on  [or  before] 

the  • day  of ,  in  the  year ,  with  interest 

thereon  [or,  as  security  for  the  payment  of  a  note 
or  obligation,  describing  it,  etc.].  A  B." 


S§  2957-2961  LIEN.  59S 

^  2957.  A  mortgage  of  personal  propei*ty  is 
void  as  against  creditors  of  tlie  mortgagor  and 
subsequent  purcliasers  and  incumbrancers  of  tlie 
jiroperty  in  good  faith  and  for  value,  unless: 

1.  It  is  accompanied  by  the  aftidavit  of  all  the 
parties  thereto  that  it  is  made  in  good  faith  and 
without  any  design  to  hinder,  delay,  or  defraud 
creditors ; 

2.  It  is  aclvuowledged  or  proved,  certified  and 
recorded,  in  like  manner  as  grants  of  real  prop- 
erty. 

Recording:  See  sees.  2959,  2961-2965,  post. 

§  2958.  A  mortgage  of  any  vessel  or  part  of 
any  vessel  under  the  flag  of  the  United  States  is 
void  as  against  any  person  (other  than  the  moit- 
gagor,  his  heirs,  and  devisee,  and  persons  having 
actual  notice  thereof),  unless  the  mortgage  is  re- 
corded in  the  oflice  of  the  collector  of  customs 
where  such  vessel  is  registered  or  enrolled. 

§  2959.  A  mortgage  of  personal  property  must 
be  recorded  in  the  office  of  the  county  recorder  of 
the  county  in  which  the  mortgagor  resides,  and 
also  of  the  county  in  which  the  property  mortgag- 
ed is  situated,  or  to  which  it  may  be  removed. 

Duty  of  recorder:  See  Polit.  Code,  sec.  4235. 

riecorcl  in  different  places:  See  sec.  2962. 

§  2960.  For  the  purposes  of  this  article,  proper- 
ty in  transit  from  the  possession  of  the  mortgagee 
to  the  countj'  of  the  residence  of  the  mortgagor, 
or  to  a  location  for  use,  is,  during  a  reasonable 
time  for  such  transportation,  to  be  taken  as  sit- 
uated in  the  county  in  which  the  mortgagor  re- 
sides, or  where  it  is  intended  to  be  used. 

See  sec.  2965,  subd.  1. 

§  2961.  For  a  like  purpose,  personal  property 
used  in  conducting  the  business  of  a  common  car- 


■.90  LIEN.  §S  2962-2935 

rier  is  to  be  taken  as  situated  in  the  county  in 
^vllich  tlie  principal  office  or  place  of  ])usiness  of 
tiio  carrier  is  located. 

§  2962.  A  single  mortgage  of  personal  prop- 
erty, embracing  several  things  of  such  character 
or  so  situated  that  by  the  provisions  of  this  arti- 
cle separate  mortgages  upon  them  would  be  re- 
quired to  be  recorded  in  different  places,  is  only 
valid  in  respect  to  the  things  as  to  which  it  is  duly 
recorded. 

County  where  property  is  situated:  Sec.  2959. 

§  2983.  Except  as  it  is  otherwise  in  this  article 
provided,  mortgages  of  personal  property  may  be 
acknowledged,  or  proved  and  certified,  recorded  in 
like  manner  and  with  lilvc  effect  as  grants  of  real 
property;  but  they  must  be  recorded  in  books  kept 
for  personal  mortgages  exclusively. 

See  sees.  1169-1171  and  1213-1217.  ante. 

i^  2964.  A  certified  copy  of  a  mortgage  of  per- 
sonal property  once  recorded  may  be  recorded  in 
any  other  county,  and  when  so  recorded  the  rec- 
ord thereof  has  the  same  force  and  effect  as 
Though  it  was  of  the  original  mortgage. 

<^  2965.  When  personal  property  mortgaged  is 
thereafter  by  the  mortgagor  removed  from  the 
county  in  which  it  is  situated,  it  is,  except  as  be- 
tween the  parties  to  the  mortgage,  exempted  from 
the  operation  thereof,  unless  either: 

1.  The  mortgagee,  within  thirty  days  after  such 
removal,  causes  the  mortgage  to  be  recorded  in 
the  county  to  which  the  property  has  been  remov- 
ed; or, 

2.  The  mortgagee,  within  tliirty  days  after  such 
removal,  takes  possession  of  the  ])roperty,  as  pre- 
scribed in  the  next  section. 


§§  2966-2970  LIEN.  600 

§  2966.  If  the  mortgagor  voluntarily  removes 
or  permits  the  removal  of  the  mortgaged  property 
from  the  county  in  which  it  was  situated  at  the 
time  it  was  mortgaged,  the  mortgagee  may  take 
possession  and  dispose  of  the  property  as  a  pledge 
for  the  payment  of  the  debt,  though  the  debt  is 
not  due. 

§  2967.  A  mortgagee  of  personal  property, 
when  the  debt  to  secure  which  the  mortgage  was 
executed  becomes  due,  may  foreclose  the  mortga- 
gor's right  of  redemption  by  a  sale  of  the  prop- 
erty, made  in  the  manner  and  upon  the  notice 
prescribed  by  the  Title  on  Pledge,  or  by  proceed- 
ings under  the  Code  of  Civil  Procedure. 

Sale  of  pledge:  See  sees.  3000  et  seq.,  post. 

Actual  notice  required:  Sec.  3002,  post. 

Foreclosure:  Code  Civ.  Proc,  sees.  726-728. 

§  2968.  P^ersonal  property  mortgaged  may  be 
taken  under  attachment  or  execution  issued  at  the 
suit  of  a  creditor  of  the  mortgagor. 

§  2969.  Before  the  property  is  so  taken,  the  of- 
ficer must  pay  or  tender  to  the  mortgagee  the 
amount  of  the  mortgage  debt  and  interest,  or  must 
deposit  the  amount  thereof  with  the  county  clerk 
or  treasurer,  payable  to  the  order  of  the  mort- 
gagee. 

Measure  of  special  owner's  damage  for  conver- 
sion: See,  post,  sec.  3338. 

§  2970.  When  the  property  thus  taken  is  sold 
under  process,  the  officer  must  apply  the  proceeds 
of  the  sale  as  follows: 

1.  To  the  repayment  of  the  sum  paid  to  the 
mortgagee,  with  interest  from  the  date  of  such 
payment;  and, 

2.    The  balance,  if  any,  in  like  manner  as  the 


601  LIEN.  §§  2971-2972 

proceeds  of  sales  under  execution  are  applied  in 
other  cases. 

§  2971.  Sections  2957,  2959,  2960,  29G1,  2962 
2903,  2964,  2965,  and  2966  do  not  apply  to  any 
mortgage  of  a  ship  or  part  of  a  ship  under  the  flag 
of  the  United  States. 

§  2972.  The  lien  of  a  mortgage  on  a  growing 
crop  continues  on  the  crop  after  severance,  wheth- 
er remaining  in  its  original  state  or  converted  into 
another  product,  so  long  as  the  same  remains  on 
the  land  of  mortgagor.  [New  section  approved 
April  1,  18TS;  Amendments  1877-8,  p.  89.  In  ef- 
fect April  1,  1878.] 


CHAPTER  HI. 

PLEDGE. 

§  2986.  Pledge,   what. 

§  2987.  When  contract  is  to  be  deemed  a  pledge. 

§  2988.  Delivery  esentlal  to  validity  of  pledge. 

§  2989.  Increase    of    thing. 

§  2990.  Lienor  may  pledge  property  to  extent  of  his  lien. 

§  2991.  Real  owner  cannot  defeat  pledge  of  property  trans- 
ferred to  apparent  owner  for  the  purpose  of 
pledge. 

§  2992.  Pledge  lender,  what. 

§  2993.  Pledge  holder,  what. 

§  2994.  When  pledge  lender  may  withdraw  property  pledged. 

§  2995.  Obligations   of   pledge   holder. 

§  2996.  Pledge  holder  must  enforce  rights  of  pledgee. 

§  2997.  Obligation  of  pledgee  and  pledge  holder,  for  re- 
ward. 

§  2998.  Gratuitous  pledge  holder. 

§  2999.  Debtor's  misrepresentation  of  value  of  pledge. 

§  3000.  ^\  hen  pledgee  may  sell. 

§  3001.  When  pledgee  must  demand  performance. 

§  3002.  Notice  of  sale  to  pledgor. 

§  3003.  Waiver  of  notice  of  sale. 

§  3004.  Waiver  of  demand. 

§  30O5.  Sale  must  be  by  auction. 

§  3006.  Pledgee's  sale  of  securities. 

Civ.  Code— 51 


§§  2986-2990  LIEN.  602 

§  3007.  Sale  on  the  demand  of  the  pledgor. 

§  3008.  Surplus  to  be  paid  to  pledgor, 

§  3009.  Same. 

§  3010.  Pledgee's  purchase  of  property  pledged. 

§  3011.  Pledgee  may  foreclose  right  of  redemption. 

§  2986.  Pledge  is  a  deposit  of  personal  prop- 
erty by  way  of  security  for  the  performance  of 
anotlier  act. 

See  sec.  3006,  post. 

Increase  of  property  pledged:  Sec.  2989,  infra. 

Note.— Much  difficulty  has  arisen  in  determin- 
ing whether  a  certain  transaction  is  a  pledge 
or  a  chattel  mortgage,  the  question  generally  be- 
ing whether  the  title  has  passed  or  not.  In  this 
State,  it  has  been  seen,  title  never  passes  in  case 
of  property  conveyed  or  deposited  as  security: 
Sec.  2S88,  ante.  And,  also,  whenever  the  posses- 
sion of  personal  property  is  transferred  as  secur- 
ity only,  it  is  to  be  treated  as  a  pledge:  Sec.  2987, 
post.  And  even  a  chattel  mortgage,  when  the 
possession  of  the  property  mortgaged  is  trans- 
ferred becomes  a  pledge:  Sec.  2924,  and  sec.  2987. 
The  question  is,  therefore,  much  simplified,  pos- 
session being  the  criterion. 

§  2987.  Every  contract  by  which  the  posses- 
sion of  personal  property  is  transferred,  as  secur- 
ity only,  is  to  be  deemed  a  pledge. 

§  2988.  The  lien  of  a  pledge  is  dependent  on 
possession,  and  no  pledge  is  valid  until  the  prop- 
erty pledged  is  delivered  to  the  pledgee,  or  to  a 
pledge  holder,  as  hereafter  prescribed. 

§  2989.  The  increase  of  property  pledged  is 
pledged  with  the  property. 

§  2990.  One  who  has  a  lien  upon  property  may 
pledge  it  to  the  extent  of  his  lien. 


tj03  LIEN.  §§  2991-2996 

Lienor's  action  for  damages:  See  sec.  3338,  post. 
Compare  next  section. 

§  2991.  One  -svho  bas  allowed  another  to  as- 
sume the  apparent  ownership  of  property  for  the 
purpose  of  making  any  transfer  of  it,  cannot 
set  up  his  own  title  to  defeat  a  pledge  of  the  prop- 
erty, made  by  the  other  to  a  pledgee  who  received 
the  property  in  good  faith,  in  the  ordinary  course 
of  business,  and  for  value. 

§  2992.  Property  may  be  pledged  as  security 
for  the  obligation  of  another  person  than  the  own- 
er, and  in  so  doing  the  owner  has  all  the  rights  of 
a  pledgor  for  himself,  except  as  hereinafter  stated. 

§  2993.  A  pledgor  and  pledgee  may  agree  upon 
a  third  person  with  whom  to  deposit  the  property 
pledged,  who,  if  he  accepts  the  deposit,  is  called 
a  pledge  holder. 

§  2994.  One  who  pledges  property  as  security 
for  the  obligation  of  another,  cannot  withdraw 
the  property  pledged  otherwise  than  as  a  pledgor 
for  himself  might,  and  if  he  receives  from  the 
debtor  a  consideration  for  the  pledge  he  cannot 
Avithdraw  it  without  his  consent. 

§  2995.  A  pledge  holder  for  reward  cannot  ex- 
onerate himself  from  his  undertaking;  and  a  gra- 
tuitous pledge  holder  can  do  so  only  by  giving 
reasonable  notice  to  the  pledgor  and  pledgee  to 
appoint  a  new  pledge  holder,  and  in  case  of  their 
failure  to  agree,  by  depositing  the  property  pledg- 
ed with  some  impartial  person,  who  will  then  be 
entitled  to  a  reasonable  compensation  for  his 
care  of  the  same. 

S  2996.  A  pledge  holder  must  enforce  all  the 
rights  of  the  pledgee,  unless  authorized  by  him  to 
waive  them. 


§§  2997  3002  LIEN.  604 

§  2997.  A  pledgee,  or  a  pledge  holder  for  re- 
ward, assumes  the  duties  and  liabilities  of  a  de- 
positary for  reward. 

Depositary  on  reward:  See  sec.  1852,  ante.  See 
see.  3007,  post. 

§  2998.  A  gratuitous  pledge  holder  assumes 
the  duties  and  liabilities  of  a  gratuitous  deposi- 
tary. 

See  sees.  1845  and  2995. 

§  2999.  Where  a  debtor  has  obtained  credit,  or 
an  extension  of  time,  by  a  fraudulent  misrepre- 
sentation of  the  value  of  property  pledged  by  or 
for  him,  the  creditor  may  demand  a  further  pledge 
to  correspond  with  the  value  represented;  and  in 
default  thereof  may  recover  his  debt  immediately, 
though  it  be  not  actually  due. 

§  3000.  When  performance  of  the  act  for 
which  a  pledge  is  given  is  due,  in  whole  or  in 
part,  the  pledgee  may  collect  what  is  due  to  him  by 
a  sale  of  property  pledged,  subject  to  the  rules  and 
exceptions  hereinafter  prescribed. 

Tlie  fourth  remedy  is  provided  by  sec.  3011,  post. 
And  sale  is  restricted  in  case  of  most  choses  in  ac- 
tion by  sec.  3006,  post.    See  also  sec.  2890,  ante. 

Foreclosure  of  pledge:  Sec.  3011. 

§  3001.  Before  property  pledged  can  be  sold, 
and  after  performance  of  the  act  for  which  it  is 
security  is  due,  the  pledgee  must  demand  perform- 
ance thereof  from  the  debtor,  if  the  debtor  can  be 
found.  [Amendment  approved  March  30,  1874; 
Amendments  1873-4,  p.  202.  In  effect  July  1,  1874.] 

§  3002.  A  pledgee  must  give  actual  notice  to 
the  pledgor  of  the  time  and  place  at  which  the 
property  pledged  will  be  sold,  at  such  a  reasona- 


605  LIEX.  §§  3003-300& 

ble  time  before  the  sale  as  will  enable  the  pledgor 
to  attend. 

§  3003.  Notice  of  sale  may  be  waived  by  a 
pledgor  at  any  time;  but  is  not  waived  by  a  mere 
waiver  of  demand  of  performance. 

§  3004.  A  debtor  or  pledgor  waives  a  demand 
of  performance  as  a  condition  precedent  to  a  sale 
of  the  property  pledged,  by  a  positive  refusal  to 
perform,  after  performance  is  due;  but  cannot 
waive  it  in  any  other  manner  except  by  contract. 

§  3005.  The  sale  by  a  pledgee,  of  property 
pledged,  must  be  made  by  public  auction,  in  the 
manner  and  upon  the  notice  to  the  public  usual  at 
the  place  of  sale,  in  respect  to  auction  sales  of 
similar  property;  and  must  be  for  the  highest  ob- 
tainable price. 

§  3006.  A  pledgee  cannot  sell  any  evidence  of 
debt  pledged  to  him,  except  the  obligations  of  gov- 
ernments, states,  or  corporations;  but  he  may  col- 
lect the  same  when  due. 

§  3007.  Whenever  property  pledged  can  be 
sold  for  a  price  sufficient  to  satisfy  the  claim  of 
the  pledgee,  the  pledgor  may  require  it  to  be  sold, 
and  its  proceeds  to  be  applied  to  such  satisfaction,, 
when  due. 

See  sec.  3009,  infra. 

§  3008.  After  a  pledgee  has  lawfully  sold  prop- 
erty pledged,  or  otherwise  collected  its  proceeds, 
he  may  deduct  therefrom  the  amount  due  under 
the  principal  obligation,  and  the  necessary  ex- 
penses of  sale  and  collection,  and  must  pay  the 
surplus  to  the  pledgor,  on  demand. 

§  3009.  When  property  pledged  is  sold  by  or- 
der of  the  pledgor  before  the  claim  of  the  pledgee 


5§  3010-3017  LIEN.  606 

is  due,  the  latter  may  retain  out  of  the  proceeds 
all  that  can  possibly  become  due  under  his  claim 
until  it  becomes  due.  LAmendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  262.  In 
effect  July  1.  1874.] 

§  3010.  Whenever  property  pledged  is  sold  at 
public  auction,  in  the  manner  provided  by  section 
three  thousand  and  five  of  this  Code,  the  pledgee 
or  pledge-holder  may  purchase  said  property  at 
such  sale.  [Amendment  approved  March  8,  1895; 
Stats.  1895,  p.  25.    In  effect  immediately.] 

§  3011.  Instead  of  selling  property  pledged,  as 
hereinbefore  provided,  a  pledgee  may  foreclose 
the  right  of  redemption  by  a  judicial  sale,  under 
the  direction  of  a  competent  court;  and  in  that 
case  may  be  authorized  by  the  court  to  purchase 
at  the  sale. 

Pawnbroliers:  Penal  Code,  sees.  338-343. 


CHAPTER  IV. 

BOTTOMRY. 

§  3017.  Bottomry,   what. 

§  3018.  Owner  of  ship  may  hypothecate. 

§  3019.  When  master  may  hypothecate  ship. 

§  3020.  Same. 

§  3021.  When   master   may   hypothecate   freight   money. 

§  3022.  Rate  of  interest. 

§  3023.  Rights   of  lender,    when   no   necessity   for   bottomry 

existed. 

§  3024.  Stipulation  for  personal  liability  void. 

§  3025.  When  money  loaned   is  to  be   repaid. 

§  3026.  When  bottomry  loan  becomes  due. 

8  3027.  Bottomry  lien,  how  lost. 

§  3028.  Preference  of  bottomry  lien  over  other  liens. 

§  3029.  Priority  of  bottomry  liens. 

§  3017.  Bottomry  is  a  contract  by  which  a 
ship  or  its  freightage  is  hypothecated  as  security 
for  a  loan,  which  is  to  be  repaid  only  in  case  the 
ship  survives  a  particular  risk,  voyage,  or  period. 


607  LIEN.  §§  3018-3023 

It  is  independent  of  possession:  Sec.  3027,  post, 
and  cases  cited. 
Insurance  by  owner:  See  sec.  2660,  ante. 

§  3018.  The  owner  of  a  ship  may  hypothecate 
it  or  its  freightage,  upon  bottomry,  for  any  lawful 
purpose,  and  at  any  time  and  place. 

§  3019.  The  master  of  a  ship  may  hypothecate 
it  upon  bottomry  only  for  the  purpose  of  procur- 
ing repairs  or  supplies  which  are  necessary  for  ac- 
complishing the  objects  of  the  voyage,  or  for  se- 
curing the  safety  of  the  ship. 

Freightage,  the  authority  of  the  master  extends 
to:  Sec.  3021. 

§  3020.  The  master  of  a  ship  can  hypothecate 
it  upon  bottomry  only  when  he  cannot  otherwise 
relieve  the  necessities  of  the  ship,  and  is  unable 
to  reach  adequate  funds  of  the  owner,  or  to  ob- 
tain any  upon  the  personal  credit  of  the  owner, 
and  when  previous  communication  with  him  is 
precluded  by  the  urgent  necessity  of  the  case. 

May  sell  ship  and  cargo:  See  sees.  2377-2379, 
ante. 

§  3021.  The  master  of  a  ship  may  hypothecate 
freightage  upon  bottomry,  under  the  same  cir- 
cumstances as  those  which  authorize  an  hypothe- 
cation of  the  ship  by  him. 

§  3022.  rpon  a  contract  of  bottomry,  the  par- 
ties may  lawfully  stipulate  for  a  rate  of  interest 
higher  than  that  allowed  by  the  law  upon  other 
contracts.  But  a  competent  court  may  reduce 
the  rate  stipulated  when  it  appears  unjustifiable 
and  exorbitant. 

I  3023.  A  lender  upon  a  contract  of  bottomry, 
made  by  the  master  of  a  ship,  as  such,  may  en- 
force the  contract,  though  the  circumstances  nee- 


§§  3024-3029  LIEN.  ;  608 

essary  to  authorize  the  master  to  hypothecate  the 
ship  did  not  in  fact  exist,  if,  after  due  diligence 
and  inquiry,  the  lender  had  reasonable  grounds 
to  believe,  and  did  in  good  faith  believe,  in  the  ex- 
istence of  such  circumstances. 

§  3024.  A  stipulation  in  a  contract  of  bottomry, 
imposing  any  liability  for  the  loan  independent  of 
the  maritime  risks,  is  void. 

§  3025.  In  case  of  a  total  loss  of  the  thing  hy- 
pothecated, from  a  risk  to  which  the  loan  was 
subject,  the  lender  upon  bottomry  can  recover 
nothing;  in  case  of  a  partial  loss,  he  can  recover 
only  to  the  extent  of  the  net  value  to  the  owner  of 
the  part  saved. 

§  3026.  Unless  it  is  otherwise  expressly  agreed, 
a  bottomry  loan  becomes  due  immediately  upon 
the  termination  of  the  risk,  although  a  term  of 
credit  is  specified  in  the  contract. 

§  3027.  A  bottomry  lien  is  independent  of  pos- 
session, and  is  lost  by  omission  to  enforce  it  with- 
in a  reasonable  time. 

§  3028.  A  bottomry  lien,  if  created  out  of  a 
real  or  apparent  necessity,  in  good  faith,  is  pre- 
ferred to  every  other  lien  or  claim  upon  the  same 
thing,  excepting  only  a  lien  for  seamen's  wages, 
a  subsequent  lien  of  materialmen  for  supplies  or 
repairs  indispensable  to  the  safety  of  the  ship, 
and  a  subsequent  lien  for  salvage. 

Seamen's  wages:  See  sees.  2048-2066. 

§  3029.  Of  two  or  more  bottomry  liens  on  the 
same  subject,  the  latter  in  date  has  preference,  if 
created  out  of  necessity. 


609  LIEN.  §§  3036-3040 

CHAPTER  V. 

RESPONDENTIA. 

§  3036.  Respondentia,    what. 

§  3037.  Respondentia   by   owner. 

§  303S.  Respondentia   by  master. 

§  3039.  Rate  of  interest. 

§  3040..  Obligations   of  ship  owner. 

§  3036.  Respondentia  is  a  contract  by  which 
a  cargo,  or  some  part  thereof,  is  hypothecated  as 
security  for  a  loan,  the  repayment  of  which  is  de- 
pendent on  maritime  rislis. 

§  3037.  The  owner  of  cargo  may  hypothecate 
it  upon  respondentia,  at  any  time  and  place,  and 
for  any  lawful  purpose. 

§  3038.  The  master  of  a  ship  may  hypothecate 
its  cargo  upon  respondentia  only  in  a  case  in 
which  he  would  be  authorized  to  hypothecate  the 
ship  and  freightage,  but  is  unable  to  borrow  suffi- 
cient money  thereon  for  repairs  or  supplies  which 
are  necessary  for  the  successful  accomplishment 
of  the  voyage;  and  he  cannot  do  so,  even  in  such 
case,  if  there  is  no  reasonable  prospect  of  benefit- 
ing the  cargo  thereb3^ 

The  same  rule  of  necessity  applies  here  as  in  the 
case  of  bottomry. 
Master  may  sell  cargo:  Sec.  2379,  ante. 

§  3039.  The  provisions  of  sections  3022  to  3029 
apply  equally  to  loans  on  respondentia. 

§  3040.  The  owner  of  a  ship  is  bound  to  repay 
to  the  owner  of  its  cargo  all  which  the  latter  is 
compelled  to  pay  under  a  contract  of  respondentia 
made  by  the  master,  in  order  to  discharge  its  lien. 

See  sec.  2385,  ante. 

Master  personally  responsible:  Sec.  2383.  ante. 


§§  3046-3048  LIEN.  610 

CHAPTER  VI. 

OTHER  LIENS. 

§  3046.  Lien  of  seller  of  real  property. 

§  3047.  When  transfer  of  contract  waives  lien. 

§  3048.  Extent   of   seller's   lien. 

§  3049.  Lien  of  seller  of  personal  property. 

§  3050.  Purchaser's  lien  on  real  property. 

§  3051.  Lien  for  service. 

§  3052.  Liens  on  personal  property. 

§  3053.  Lien  of  factor. 

§  3054.  Banker's  lien. 

§  3055.  Shipmaster's  lien. 

§  3056.  Seamen's    lien. 

§  3057.  Officers'    lien. 

§  3058.  Judgment  lien. 

§  3059.  Mechanic's   lien. 

§  3060.  Lien    on    ships. 

§  3046.  One  who  sells  real  property  has  a  ven- 
dor's lien  thereon,  independent  of  possession,  for 
so  much  of  the  price  as  remains  unpaid  and  un- 
secured otherwise  than  by  the  personal  obligation 
of  the  buyer. 

A  transfer  of  personal  security  waives  the  lien: 
Sec.  3047,  infra. 

Transfer  by  vendee  to  bona  fide  purchaser  or 
incumbrancer  discharges  lien:  Sec.  3048,  infra. 

§  3047.  Where  a  buyer  of  real  property  gives 
to  the  seller  a  written  contract  for  payment  of  all 
or  part  of  the  price,  an  absolute  transfer  of  such 
contract  by  the  seller  waives  his  lien  to  the  extent 
of  the  sum  payable  under  the  contract;  but  a 
transfer  of  such  contract  in  trust  to  pay  debts,  and 
return  the  surplus,  is  not  a  waiver  of  the  lien. 

§  3048.  The  liens  defined  in  sections  3046  and 
3050  are  valid  against  every  one  claiming  under 
the  debtor,  except  a  purchaser  or  incumbrancer 
in  good  faith  and  for  value. 

See  sec.  19,  ante. 


611  LIEN.  §§  3049-3052 

§  3049.  One  who  sells  personal  property  has  a 
special  lieu  thereon,  dependent  on  possession,  for 
its  price,  if  it  is  in  his  possession  when  the  price 
becomes  payable,  and  may  enforce  his  lien  in  like 
manner  as  if  the  property  was  pledged  to  him  for 
the  price. 

See  sec.  3002,  ante. 

§  3050.  One  who  pays  to  the  owner  any  part 
of  the  price  of  real  property,  under  an  agreement 
for  the  sale  thereof,  has  a  special  lien  upon  the 
property,  independent  of  possession,  for  such 
part  of  the  amount  paid  as  he  may  be  entitled  to 
recover  bacii,  in  case  of  a  failure  of  consideration. 

§  3051.  Every  person  who,  while  lawfully  in 
possession  of  an  article  of  personal  property,  ren- 
ders any  service  to  the  owner  thereof  by  labor  or 
skill  employed  for  the  protection,  improvement, 
safe  keeping,  or  carriage  thereof,  has  a  special 
lien  thereon,  dependent  on  possession,  for  the  com- 
pensation, if  any,  which  is  due  to  him  from  the 
owner  for  such  service.  And  livery  or  boarding 
or  feed  stable  proprietors  and  persons  pasturing 
horses  or  stock  have  a  lien  dependent  on  posses- 
sion for  their  compensation  in  caring  for,  board- 
ing, feeding,  or  pasturing  such  horses  or  stock. 
[Amendment  approved  March  29,  1878;  Amend- 
ments 1877-8,  p.  89.    In  effect  May  28,  1878.] 

Carriers'  lien:  Sees.  2144,  2191. 

§  3052.  A  person  who  makes,  alters,  or  repairs 
any  article  of  personal  property,  at  the  request  of 
the  owner,  or  legal  possessor  of  the  property,  has 
a  lien  on  the  same  for  his  reasonable  charges  for 
work  done  and  materials  furnished,  and  may  re- 
tain possession  of  the  same  until  the  charges  are 
paid.  If  not  paid  within  two  months  after  the 
work  is  done,  the  person  may  proceed  to  sell  the 
property   at  public   auction,   by  giving  ten  days' 


§§  3053-3057  LIEN.  612 

public  notice  of  the  sale  by  advertising  in  some 
newspaper  published  in  the  county  in  which  the 
worli  was  done;  or,  if  there  be  no  newspaper  pub- 
lished in  the  county,  then  by  posting  up  notices 
of  the  sale  in  three  of  the  most  public  places  in 
the  town  where  the  work  was  done,  for  ten  days 
previous  to  the  sale.  The  proceeds  of  the  sale 
must  be  applied  to  the  discharge  of  the  lien  and 
the  cost  of  keeping  and  selling  the  property;  the 
remainder,  if  any,  must  be  paid  over  to  the  owner 
thereof. 

Lien  in  favor  of  owner  of  propagating  animal: 
See  post,  Appendix,  p.  795. 

§  3053.  A  factor  has  a  general  lien,  dependent 
on  possession,  for  all  that  is  due  to  him  as  such, 
upon  all  articles  of  commercial  value  that  are  in- 
trusted to  him  by  the  same  principal. 

Power  of  pledging:  See  sees.  2874,  2991. 

Factors'  enforcement  of  lien:  Sec.  2027. 

§  3054.    A  banker  has  a  general  lien,  dependent 
on  possession,  upon  all  property  in  his  hands  be- 
longing to  a  customer,  for  the  balance  due  to  him       j 
from  such  customer  in  the  course  of  the  business. 

§  3055.  The  master  of  a  ship  has  a  general  lien, 
independent  of  possession,  upon  the  ship  and 
freightage,  for  advances  necessarily  made  or  lia- 
bilities necessarily  incurred  by  him  for  the  benefit 
of  the  ship,  but  has  no  lien  for  his  wages. 

§  3056.  The  mate  and  seamen  of  a  ship  have 
a  general  lien,  independent  of  possession,  upon  the 
ship  and  freightage,  for  their  wages,  which  is  su- 
perior to  every  other  lien. 

§  3057.  An  officer  who  levies  an  attachment 
or  execution  upon  personal  property  acquires  a 
special  lien,  dependent  on  possession,  upon  such 


613  LIEN.  §§3058-3076 

property,  which  authorizes  him  to  hold  it  until 
the  process  is  discharged  or  satisfied,  or  a  judicial 
sale  of  the  property  is  had. 

Attachment  and  execution:  See  Code  Civ.  Proc, 
sees.  542,  688,  and  682. 

§  3058.  The  lien  of  a  judgment  is  regulated  by 
the  Code  of  Civil  Procedure. 

Judgment  lien:  See  Code  Civ.  Proc,  sees.  671, 
674. 


and  services  upon  real  property,  are  regulated  by 
the  Code  of  Civil  Procedure.    [Sees.  1183-1199.] 
See  also  sec.  3052,  ante;  post,  Appendix,  p.  742. 

§  3060.  Debts  amounting  to  at  least  fifty  dol- 
lars, contracted  for  the  benefit  of  ships,  are  liens 
in  the  cases  provided  by  the  Code  of  Civil  Proce- 
dure.    [Sec.  813.] 

Lien  of  innkeepers  and  boarding-house  keepers: 
See  sees.  1861-1863  of  this  Code.  Liens  for  wages, 
etc.:  Code  Civ.  Proc,  sees.  1204-1206. 


CHAPTER  VIL 

STOPPAGE   IN  TRANSIT. 

§  3076.  When  consignor  may  stop  goods. 

§  3077.  What  is  insolvency  of  consignee. 

§  3078.  Transit,  when  ended. 

§  3079.  Stoppage,  how  effected. 

§  3080.  Effect  of  stoppage. 

§  3076.  A  seller  or  consignor  of  property, 
whose  claim  for  its  price  or  proceeds  has  not  been 
extinguished,  may,  upon  the  insolvency  of  the  buy- 
er or  consignee  becoming  known  to  him  after  part- 
ing with  the  property,  stop  it  while  on  its  transit 
to  the  buyer  or  consignee,  and  resume  possession 
thereof. 

Civ.    Code- 52 


§§  3077-3080      NEGOTIABLE    INSTRUMENTS.  614 

That  bills  of  lading  are  negotiable:  See  sees. 
2127,  2128,  ante. 

§  3077,  A  person  is  insolvent,  within  the  mean- 
ing of  the  last  section,  when  he  ceases  to  pay  his 
debts  in  the  manner  usual  with  persons  of  his 
business,  or  when  he  declares  his  inability  or  un- 
willingness to  do  so. 

§  3078.  The  transit  of  property  is  at  an  end 
when  it  comes  into  the  possession  of  the  consignee, 
or  into  that  of  his  agent,  unless  such  agent  is  em- 
ployed merely  to  forward  the  property  to  the  con- 
signee. 

§  3079.  Stoppage  in  transit  can  be  effected 
only  by  notice  to  the  carrier  or  depositary  of  the 
property,  or  by  talcing  actual  possession  thereof. 

§  3080.  Stoppage  in  transit  does  not,  of  itself, 
rescind  a  sale,  but  is  a  means  of  enforcing  the  lien 
of  the  seller. 

TITLE  XV. 


Chapter  I.    Negotiable     Instruments    in    General, 
§§  308C-31G5. 
II.    Bills  of  Exchange,  §§  3171-3238. 

III.  Promissory  Notes,  §§  3244-3248. 

IV.  Checks,  §§  3254-32.55. 

V.    Banli  Notes    and  Certificates  of    De- 
posit, §§  3261-3262. 

CHAPTER  I. 

NEGOTIABLE   INSTRUMENTS   IN    GENERAL. 

Article  I.  General   Definitions,    §§  3086-3095. 

II.  Interpretation,    §§   3099-3104. 

III.  Indorsement,  §§  3108-3125. 

IV.  Presentment  for   Payment,    §§  3130-3137. 
V.  Dishonor,   §§  3141-3151. 

VI.     Fxruse  of  Presentment  and  Notice,  §§  3155-3160. 
VII.    Extinction,    §§    3164-3165. 


615  NEGOTIABLE   INSTRUMENTS.       §§  3086-3090 

ARTICLE  I. 

GENERAL  DEFINITIONS. 

§  3086.  To  what  instruments  this  title  is  applicable. 

§  3087.  Negotiable  instrument,  what. 

§  3088.  Must  be  for  unconditional  payment  of  money. 

5<  30S9.  Payee. 

§  3090.  Instrument  may  be  in  alternative. 

§  3091.  Date,  etc. 

§  3092.  May  contain  a  pledge,  etc. 

§  3093.  What  it  must  not  contain. 

§  3094.  Date. 

§  3095.  Different   classes   of  negotiable   instruments. 

§  3086.  The  provisions  of  this  title  apply  only 
to  negotiable  instruments,  as  defined  in  this  ar- 
ticle. 

§  3087.  A  negotiable  instrument  is  a  written 
promise  or  reqnest  for  the  payment  of  a  certain 
sum  of  money  to  order  or  bearer,  in  conformity 
to  the  provisions  of  this  article. 

Fictitious  payee:  See  sees.  3102,  3103. 

§  3088.  A  negotiable  instrument  must  be  made 
payable  in  money  only,  and  without  any  condition 
not  certain  of  fulfillment. 

Other  contract  in  instrument:  See  infra,  sec. 
8093. 

§  3089.  The  person  to  whose  order  a  negotiable 
instrument  is  made  payable  must  be  ascertainable 
at  the  time  the  instrument  is  made. 

Fictitious  payee:  See  sees.  3102,  3103. 

Indorsement  in  blank:  See  sec.  3125. 

§  3090.  A  negotiable  instrument  may  give  to 
the  paj-ee  an  option  between  the  payment  of  the 
sum  specified  therein  and  the  performance  of  an- 
other act;  but  as  to  the  latter,  the  instrument  is 
not  within  the  provisions  of  this  title. 


§§  3091-3095       NEGOTIABLE   INSTRUMENTS.  616 

§  3091.  A  negotiable  instrument  may  be  with 
or  witliout  date,  and  with  or  without  designation 
of  the  time  or  place  of  payment. 

Antedating:  See  sec.  3094. 

Time  of  payment:  See  sec.  3248,  post. 

Place  of  payment:  See  sees.  3100,  3130,  3131, 
subd.  4. 

§  3092.  A  negotiable  instrument  may  contain  a 
pledge  of  collateral  security,  with  authority  to  dis- 
pose thereof. 

§  3093.  A  negotiable  instrument  must  not  con- 
tain any  other  contract  than  such  as  is  specified 
in  this  article. 

§  3094.  Any  date  may  be  inserted  by  the  mak- 
er of  a  negotiable  instrument,  whether  past,  pres- 
ent, or  future,  and  the  instrument  is  not  invali- 
dated by  his  death  or  incapacity  at  the  time  of 
the  nominal  date. 

§  3095.  There  are  six  classes  of  negotiable  in- 
struments, namely: 

1.  Bills  of  exchange; 

2.  Promissory  notes; 

3.  Bank  notes; 

4.  Checks; 

5.  Bonds; 

G.    Certificates  of  deposit. 

Bills  of  lading:  Sec.  2127,  ante. 

Certificates  of  stock  are  not  negotiable  instru- 
ments: See  ante,  sec.  324. 

Bills  of  exchange:  See  sees.  3171  et  seq. 

Promissory  notes:  See  sees.  3244  et  seq. 

Bank  notes,  bonds,  and  certificates  of  deposit: 
See  sec.  8261. 

Checks:  See  sees.  3254  et  seq. 


617  NEGOTIABLE   INSTRUMENTS.        §.^  3099-3102 

AKTICLE   II. 

INTERPRETATION    OF   NEGOTIABLE   INSTRUMENTS. 

§  3099.  Time  and  place  of  payment. 

§  3100.  Place   of   payment   not   specified. 

§  3101.  Instruments  payable  to  a  person  or  his  order,   how 

construed. 

§  3102.  Unindorsed  note,  when  negotiable. 

§  3103.  Fictitious   payee. 

§  3104.  Presumption   of   consideration. 

§  3099.  A  negotiable  instrument  which  does 
not  specify  the  time  of  payment  is  payable  imme- 
diately. 

Time  of  payment:  See  sec.  3091,  ante. 

§  3100.  A  negotiable  instrument  which  does 
not  specify  a  place  of  payment  is  payable  at  the 
residence  or  place  of  business  of  the  maker,  or 
wherever  he  may  be  found.  [Amendment  approv- 
ed March  30,  1874;  Amendments  1873-4,  p.  202.  In 
effect  July  1,  1874.] 

Place  of  payment.— Where  no  place  of  payment 
is  expressed  in  a  bill,  the  drawee's  i^lace  of  resi- 
dence is  understood:  Sec.  3131,  subd,  4,  post. 

§  3101.  An  instrument,  otherwise  negotiable  in 
form,  payable  to  a  person  named,  but  with  the 
words  added,  "or  to  his  order,"  or  "to  bearer,"  or 
words  equivalent  thereto,  is  in  the  former  case 
payable  to  the  written  order  of  such  person,  and 
in  the  latter  case  payable  to  the  bearer. 

§  3102.  A  negotiable  instrument,  made  paya- 
ble to  the  order  of  the  maker,  or  of  a  fictitious  per- 
son, if  issued  by  the  maker  for  a  valid  considera- 
tion, without  indorsement,  has  the  same  effect 
against  him  and  all  other  persons  having  notice 
of  the  facts  as  if  payable  to  the  bearer. 


§§  3103-3109       NEGOTIABLE   INSTRUMENTS.  618 

Fictitious  paj-ee:  See  next  section. 
Payee  generally:  See  sec.  3089. 

§  3103.  A  negotiable  instrument,  made  paya- 
ble to  the  order  of  a  person  obviously  fictitious,  is 
payable  to  the  bearer. 

§  3104.  The  signature  of  every  drawer,  ac- 
ceptor, and  indorser  of  a  negotiable  instrument  is 
presumed  to  have  been  made  for  a  valuable  con- 
sideration, before  the  maturity  of  the  instrument, 
and  in  the  ordinary  course  of  business. 


ARTICLE  III. 

INDORSEMENT. 

§  3108.  Indorsement,   what. 

§  3109.  Agreement   to   indorse. 

§  3110.  When  may  be  made  on  separate  paper. 

§  3111.  Kinds  of  indorsement. 

?  3112.  Geneifl   indoi  st'moin.  what.  _ 

§  3113.  Special  indorsement,  what. 

§  3114.  General   indorsement,   how  made  special. 

§  3115.  Destruction  of  negotiability  by  indorser. 

§  3116.  Implied  warranty  of  indorser. 

§  3117.  Indorser,   when  liable   to   payee. 

§  3118.  Indorsement  without  recourse. 

§  3119.  Same.  ♦ 

§  3120.  Indorsee  privy  to   contract. 

§  3121.  Rights   of  accommodation   indorser.     (Repealed.) 

§  3122.  Effect  of  want  of  consideration. 

§  3123.  Indorsee  in  due  course,   what. 

§  3124.  Rights  of  indorsee  in  due  course. 

§  3125.  Instrument  left  blank. 

§  3108.  One  who  writes  his  name  upon  a  ne- 
gotiable instrument,  otherwise  than  as  a  maker  or 
acceptor,  and  delivers  it  with  his  name  thereon,  to 
another  person,  is  called  an  indorser,  and  his  act 
is  called  indorsement. 

Indorser  before  delivery:  See  sec.  3117. 

§  3109.    One  who  agrees  to  indorse  a  negotiable 


♦>19  NEGOTIABLE   INSTRUMENTS.        §§  3U0-3116 

instrument  is  boimd  to  write  his  signature  upon 
the  baclv  of  the  instrument,  if  there  is  sufficient 
space  thereon  for  that  purpose. 

§  3110.  When  there  is  not  room  for  a  signature 
upon  the  back  of  a  negotiable  instrument,  a  sig- 
nature equivalent  to  an  indorsement  thereof  may 
be  made  upon  a  paper  annexed  thereto. 

§  3111.  An  indorsement  may  be  general  or 
special. 

§  3112.  A  general  indorsement  is  one  by  which 
no  indorsee  is  named. 

§  3113.  A  special  indorsement  specifies  the  in- 
dorsee. 

§  3114.  A  negotiable  instrument  bearing  a  gen- 
eral indorsement  cannot  be  afterward  specially 
indorsed;  but  any  lawful  holder  may  turn  a  gen- 
eral indorsement  into  a  special  one,  by  writing 
above  it  a  direction  for  payment  to  a  particular 
Dersor*. 

§  3115.  A  special  indorsement  may.  by  express 
words  for  that  purpose,  but  not  otherwise,  be  so 
made  as  to  render  the  instrument  not  negotiable. 

§  3116.  Every  indorser  of  a  negotiable  instru- 
ment, unless  his  indorsement  is  qualified,  war- 
rants to  every  subsequent  holder  thereof,  who  is 
not  liable  thereon  to  him: 

1.  That  it  is  in  all  respects  what  it  purports  to 
be: 

2.  That  he  has  a  good  title  to  it; 

3.  That  the  signatures  of  all  prior  parties  are 
binding  upon  them; 

4.  That  if  the  instrument  is  dishonored,  the  in- 
dorser will,  upon  notice  thereof  duly  given  to  him, 
or  without  notice,  where  it  is  excused  by  law,  pay 


§§  3U7-3119       NEGOTIABLE   INSTRUMENTS.  620 

the  same  with  interest,  unless  exonerated  under 
the  provisions  of  sections  thirty-one  hundred  and 
eighty-nine,  thirty-two  hundred  and  thirteen,  thir- 
ty-two hundred  and  forty-eight,  or  thirty-two  hun- 
dred and  liftj'-five.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  p.  203.  In  effect 
July  1,  1874.] 

Note.— Between  the  engagements  of  mali:er  and 
acceptor  and  of  drawer  and  indorser  this  dis- 
tinction exists,  that  the  contract  of  the  maimer 
and  acceptor  is  absolute  to  pay  at  maturity,  and 
no  presentment  is  necessary  to  charge  them:  See. 
3130,  post;  while  the  contract  of  the  drawer  and 
indorser  is  conditional,  being  contingent  upon  the 
true  presentment  at  maturity,  and  due  notice  in 
case  it  is  not  paid:  Sees.  3141-3151,  post;  unless  a 
sufficient  cause  intervene  excusing  the  holder 
from  the  performance  of  this  duty:  Sees.  3155- 
3160,  post. 

Want  or  failure  of  consideration:  See  sec.  3122, 
and  note. 

Acceptance  of  bill  of  exchange  admits  genuine- 
ness of  drawer's  signature:  See  sec.  3199. 

Drawer  of  bill  of  exchange  on  acceptance  has 
rights  of  a  first  indorser:  See  sec.  3177. 

§  3117.  One  who  indorses  a  negotiable  instru- 
ment before  it  is  delivered  to  the  payee  is  liable  to 
the  payee  thereon,  as  an  indorser. 

Indorser  defined:  Sec.  3108. 

§  3118.  An  indorser  may  qualify  his  indorse- 
ment with  the  words,  "without  recourse,"  or 
equivalent  words;  and  upon  such  indorsement,  he 
is  responsible  only  to  the  same  extent  as  in  the 
case  of  a  transfer  without  indorsement. 

§  3119.  Except  as  otherwise  prescribed  by  the 
last  section,  an  indorsement,  without  recourse,  has 
the  same  effect  as  any  other  indorsement. 


S21  NEGOTIABLE   INSTRUMENTS.        §§  3120-3124 

§  3120.  Au  indorsee  of  a  negotiable  instru- 
ment has  the  same  rights  against  every  prior  par- 
ty thereto  that  he  would  have  had  if  the  contract 
had  been  made  directly  between  them  in  the  first 
Instance. 

Collateral  security,  etc.:  Sees.  2936,  2939,  ante. 

§  3121.  [Repealed  March  30,  1874;  Amend- 
ments 1ST3-4,  2G3.    In  effect  July  1,  1874.] 

§  3122.  The  want  of  consideration  for  the  uu- 
dertaliing  of  a  maimer,  acceptor,  or  indorser,  of  a 
negotiable  instrument  does  not  exonerate  him 
from  liability  thereon  to  an  indorsee  in  good  faith 
for  a  consideration. 

Writing  imports  consideration:  Sec.  1614. 

§  3123.  An  indorsee  in  due  course  is  one  who, 
in  good  faith,  in  the  ordinary  course  of  business, 
and  for  value,  before  its  apparent  maturity  or 
presumptive  dishonor,  and  Avithout  knowledge  of 
its  actual  dishonor,  acquires  a  negotiable  instru- 
ment duly  indorsed  to  him,  or  indorsed  generally, 
or  payable  to  the  bearer. 

Presumptive  dishonor:  See  sec.  3133. 

Checlis  are  an  exception  to  the  rule  of  "after 
maturity":  Sec.  32.5.5,  subd.  2. 

Demand  and  notice:  See  sec.  3116. 

§  3124.  An  indorsee  of  a  negotiable  instru- 
ment, in  due  course,  acquires  an  absolute  title 
thereto,  so  that  it  is  valid  in  his  hands,  notwith- 
standing any  provision  of  law  making  it  generally 
void  or  voidable,  and  notwithstanding  any  defect 
in  the  title  of  the  person  from  whom  he  acquired 
it. 

Assignment,  effect  on  defense:  See  Code  Civ. 
Proc,  sec.  368. 


§§  3125-3131       NEGOTIABLE   INSTRUMENTS.  622 

Non-negotiable  instruments,  assignments  of:  Sec. 
1459. 

Actions  by  assignee  or  indorsee:  See  Code  Civ. 
Proc,  sec.  368. 

§  3125.  One  wlio  makes  himself  a  party  to  an 
'.nstrument  intended  to  be  negotiable,  but  whicn 
is  left  wholly  or  partly  in  blank,  for  the  purpose 
of  idling  afterward,  is  liable  upon  the  instrument 
to  an  indorsee  thereof  in  due  course,  in  whatever 
manner  and  at  whatever  time  it  may  be  filled,  so 
long  as  it  remains  negotiable  in  form. 


AKTICLE  lY. 

PRESENTMENT  FOR  PAYMENT. 

§  3130.  Effect  of  want  of  demand  on  principal  debtor. 

§  3131.  Presentment,  how  made. 

§  3132.  Apparent  maturity,   when. 

§  3133.  Presumptive  dishonor  of  bill,   payable  after  sight. 

§  3134.  Apparent  maturity  of  bill,  payable  at  sight. 

§  3135.  Apparent  maturity  of  note. 

§  3136.  Same. 

§  3137.  Surrender  of  instrument,   when  a  condition  of  pay- 
ment. 

§  3130.  It  is  not  necessary  to  make  a  demand 
of  payment  upon  the  principal  debtor  in  a  negotia- 
ble instrument  in  order  to  charge  him;  but  if  the 
instrument  is  by  its  terms  payable  at  a  specified 
place,  and  he  is  able  and  willing  to  pay  it  there 
at  maturity,  such  ability  and  willingness  are 
equivalent  to  an  offer  of  payment  upon  his  part. 

Presentment  of  bill  of  exchange  for  acceptance: 
Sees.  3185  et  seq. 

Presentment  of  bill  of  exchange  for  payment: 
Sees.  3211  et  seq. 

Presentment  in  case  of  acceptance  for  honor: 
Sees.  3200,  3207. 

§  3131.    Presentment    of    a    negotiable    iustru- 


tT23  NEGOTIABLE   INSTRUMENTS.  §  3131 

merit  for  payment,  when  necessary,  must  be  made 
as  follows,  as  nearly  as  by  reasonable  diligence 
it  is  practicable: 

1.  The  instrument  must  be  presented  by  the 
holder; 

2.  The  instrument  must  be  presented  to  the 
principal  debtor,  if  he  can  be  found  at  the  place 
where  presentment  should  be  made;  and  if  not, 
then  it  must  be  presented  to  some  other  person 
having  charge  thereof,  or  employed  therein,  if 
one  can  be  found  there; 

3.  An  instrument  which  specifies  a  place  for 
its  payment  must  be  presented  there;  and  if  the 
place  specified  includes  more  than  one  house,  then 
at  the  place  of  residence  or  business  of  the  prin- 
cipal debtor,  if  it  can  be  found  therein; 

4.  An  instrument  which  does  not  specify  a 
place  for  its  payment  must  be  presented  at  the 
place  of  residence  or  business  of  the  principal 
debtor,  or  wherever  he  may  be  found,  at  the  op- 
tion of  the  presenter;  and, 

5.  The  instrument  must  be  presented  upon  the 
day  of  its  maturity,  or,  if  it  be  payable  on  demand, 
it  may  be  presented  upon  any  day.  It  must  be 
presented  within  reasonable  hours;  and,  if  it  be 
payable  at  a  banking  house,  within  the  usual 
banking  hours  of  the  vicinity,  but,  by  the  con- 
sent of  the  person  to  whom  it  should  be  presented, 
it  may  be  presented  at  any  hour  of  the  day; 

6.  If  the  principal  debtor  have  no  place  of  busi- 
ness, or  if  his  place  of  business  or  residence  can* 
not,  with  reasonable  diligence,  be  ascertained,  pre- 
sentment for  payment  is  excused.  [Amendment 
approved  March  30,  1874;  Amendments  1873-4,  p. 
263.     In  effect  July  1,  1874.] 

See  sec.  3132,  infra. 

Payable  on  demand:  See  sees.  3134,  3135,  infra. 
Presentment   of   bills   of   exchange   for   accept- 
ance: See  sees.  3185  et  seq. 


&§  3132-3135       NEGOTIABLE   INSTRUMENTS.  624 

Presentment  of  bills  of  exchange  for  payment: 
See  sees.  3211  et  seq. 
Bills  of  exchange,  where  payable:  See  sec.  3176. 
Reasonable  diligence:  Sec.  3158. 

§  3132.  The  apparent  maturity  of  a  negotiable 
instrument,  payable  at  a  particular  time,  is  the 
day  on  which,  by  its  terms,  it  becomes  due,  or 
when  that  is  a  holiday,  the  next  business  day. 

See  sec.  3164,  post. 

§  3133.  A  bill  of  exchange,  payable  at  a  cer- 
tain time  after  sight,  which  is  not  accepted  within 
ten  days  after  its  date,  in  addition  to  the  time 
which  would  suffice,  with  ordinary  diligence,  to 
forward  it  for  acceptance,  is  presumed  to  have 
been  dishonored. 

§  3134.  The  apparent  maturity  of  a  bill  of  ex- 
change payable  at  sight  or  on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date; 
or 

2.  If  it  does  not  bear  interest,  ten  days  after 
its  date,  in  addition  to  the  time  which  would  suf- 
fice, with  ordinary  diligence  to  forward  it  for  ac- 
ceptance. 

Mere  delay  in  presentment  does  not  exonerate: 
Sec.  3214,  post.  Presentment  not  made  within  the 
time,  and  not  excused,  exonerates  drawer  and  in- 
dorsers:  Id.  Rule  modified  in  case  of  checks:  Sec. 
3255,  post. 

§  3135.  The  apparent  maturity  of  a  promis- 
sory note  payable  at  sight  or  on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  six  months  after 
its  date. 

Section  3214.  post,  applies  also  to  promissory 
notes:   See  sec.   3247. 


625  NEGOTIABLP:   instruments.        §§  3136-3141 

Presentment  not  made  within  the  time,  and  not 
excused,  exonerates  the  indorsers:  Sec.  3248,  post. 

§  3136.  Where  a  promissory  note  is  payable  at 
a  certain  time  after  sight  or  demand,  such  time  is 
to  be  added  to  the  periods  mentioned  in  the  last 
section. 

§  3137.  A  party  to  a  negotiable  instrument  may 
require,  as  a  condition  concurrent  to  its  payment 
by  him: 

1.  That  the  instrument  be  surrendered  to  him, 
unless  it  is  lost  or  destroyed,  or  the  holder  has 
other  claims  upon  it;  or, 

2.  If  the  holder  has  a  right  to  retain  the  instru- 
ment and  does  retain  it,  then  that  a  receipt  for  the 
amount  paid,  or  an  exoneration  of  the  party  pay- 
ing, be  written  thereon;  or, 

3.  If  the  instrument  is  lost  or  destroyed,  then 
that  the  holder  give  to  him  a  bond,  executed  by 
himself  and  two  sufficient  sureties,  to  indemnify 
him  against  any  lawful  claim  thereon. 


ARTICLE  V. 

DISHONOR    OP   NEGOTIABLE    INSTRUMENTS. 

§  3141.  Dishonor,   what. 

§  3142.  Notice,   by  whom   given. 

§  3143.  Form  of  notice. 

§  3144.  Notice,  how  served. 

§  3145.  Notice,  how  served  after  indorser's  death. 

§  3146.  Notice  given  in  ignorance  of  death,  valid. 

§  3147.  Notice,  when  to  be  given. 

§  3148.  Notice  of  dishonor,  when  to  be  mailed. 

§  3149.  Notice,  how  given  by  agent. 

S  3150.  Additional  time  for  notice  by  indorser. 

§  3151.  Effect  of  notice  of  dishonor. 

§  3141.    A  negotiable  instrument  is  dishonored, 
when   it   is  either   not   paid,  or  not  accepted,  ac- 
cording to  its  tenor,  on  presentment  for  the  pur- 
Civ.  Code— 53 


§§  3142-3144       NEGOTIABLE   INSTRUMENTS.  626 

pose,  or  without  presentment,  where  that  is  ex- 
cused. 

Presentment  for  payment:  See  sec.  3186. 

Dishonor  of  bill  by  nonacceptance:  Sees.  3187, 
3188,  3194. 

Damages  allowed  on  dishonor  of  foreign  bills* 
of  exchange:  See  sees.  3234-3238. 

§  3142.  Notice  of  the  dishonor  of  a  negotiable 
instrument  may  be  given: 

1.  By  a  holder   thereof;  or, 

2.  By  any  party  to  the  instrument  who  might 
be  compelled  to  pay  it  to  the  holder,  and  who 
would,  upon  tailing  it  up,  have  a  right  to  reim- 
bursement from  the  party  to  whom  the  notice  is 
given. 

Protest  of  bill  of  exchange:  See  post,  sec.  3225. 
Notice  of  protest:  See  sec.  3231,  post. 
Notice  of  dishonor  to  acceptor  for  honor:   See 
sees.  3206.  3207. 

§  3143.  A  notice  of  dishonor  may  be  given  in 
any  form  Avhich  describes  the  instrument  with 
reasonable  certainty,  and  substantially  informs 
the  party  receiving  it  that  the  instrument  has 
been  dishonored. 

Notice  of  dishonor  of  foreign  bills  of  exchange: 
Sec.  3225. 

§  3144,    A  notice  of  dishonor  may  be  given: 

1.  By  delivering  it  to  the  party  to  be  charged, 
personally  at  any  place;  or, 

2.  By  delivering  it  to  some  person  of  discretion 
at  the  place  of  residence  or  business  of  such  party, 
apparently  acting  for  him;  or, 

3.  By  properly  folding  the'  notice,  directing  it  to 
the  party  to  be  charged,  at  his  place  of  residence, 
according  to  the  best  information  that  the  person 
giving  the  notice  can  obtain,  depositing  it  in  the 

postoffice  most  conveniently  accessible  from  the 


0^7  NEGOTIABLE  INSTRUMENTS.       §§  3145-3149 

place  where  the  presentment  was  made,  and  pay- 
ing the  postage  thereon. 

Notary's  protest  as  evidence:  See  cases  supra, 
and  Polit.  Code,  sec.  795. 

Foreign  bills  of  exchange,  notice  of  dishonor, 
how  given:  See  sec.  3231. 

§  3145.  In  case  of  the  death  of  a  party  to 
whom  notice  of  dishonor  should  otherwise  be 
given,  the  notice  must  be  given  to  one  of  his  per- 
sonal representatives;  or,  if  there  are  none,  then  to 
any  member  of  his  family  who  resided  with  him 
at  his  death;  or,  if  there  is  none,  then  it  must  be 
mailed  to  his  last  place  of  residence,  as  prescribed 
by  subdivision  3  of  the  last  section. 

§  3146.  A  notice  of  dishonor  sent  to  a  party  af- 
ter his  death,  but  in  ignorance  thereof,  and  in 
good  faith,  is  valid. 

§  3147.  Notice  of  dishonor,  when  given  by  the 
holder  of  an  instrument  or  his  agent,  otherwise 
than  by  mail,  must  be  given  on  the  day  of  dis- 
honor, or  on  the  next  business  day  thereafter.- 

§  3148.  When  notice  of  dishonor  is  given  by 
mail,  it  must  be  deposited  in  the  postoffice  in  t.im" 
for  the  first  mail  which  closes  after  noon  or  tne 
first  business  day  succeeding  the  dishonor,  and 
which  leaves  the  place  where  the  instrument  was 
dishonored,  for  the  place  to  which  the  notice 
should  be  sent. 

§  3149.  When  the  holder  of  a  negotiable  in- 
strument, at  the  time  of  its  dishonor,  is  a  mere 
agent  for  the  owner,  it  is  suflicient  for  him  to 
give  notice  to  his  principal  in  the  same  manner  as 
to  an  indorser,  and  his  principal  may  give  notice 
to  any  other  party  to  be  charged,  as  if  he  were 
himself  an  indorser.  And  if  an  agent  of  the  owner 
employs  a  sub-agent,  it  is  sufRcieut  for  each  sue- 


§§  3150-3155       NEGOTIABLE   INSTRUMENTS.  628 

cessive  agent  or  sub-agent  to  give  notice  in  lilve 
manner  to  his  own  principal. 

§  3150.  Every  party  to  a  negotiable  instru- 
ment, receiving  notice  of  its  dishonor,  has  the 
lilie  time  thereafter  to  give  similar  notice  to  prior 
parties  as  the  original  holder  had  after  its  dis- 
honor. But  this  additional  time  is  available  only 
to  the  particular  party  entitled  thereto. 

§  3151.  A  notice  of  the  dishonor  of  a  negotia- 
ble instrument,  if  valid  in  favor  of  the  party  giv- 
ing it,  enures  to  the  benefit  of  all  other  parties 
thereto  whose  right  to  give  the  lil^e  notice  has  not 
then  been  lost. 

ARTICLE  TI. 
EXCUSE  OF  PRESENTMENT  AND  NOTICE. 

§  3155.  Notice  of  dishonor,  when  excused. 

§  3156.  Presentment  and  notice,  when  excused. 

§  3157.  Same. 

ii  3158.  Delay,   when   excused. 

§  3159.  Waiver  of  presentment  and  notice. 

S  3160.  Waiver  of  protest. 

§  3155.    Notice  of  dishonor  is  excused: 

1.  When  the  party  by  whom  it  should  be  given 
cannot,  with  reasonable  diligence,  ascertain  either 
the  place  of  residence  or  business  of  the  party  to 
be  charged;  or, 

2.  When  there  is  no  postoffice  communication 
between  the  town  of  the  party  by  whom  the  notice 
should  be  given  and  the  town  in  which  the  place 
of  residence  or  business  of  the  party  to  be 
charged  is  situated;  or, 

3.  When  the  party  to  be  charged  is  the  same 
person  who  dishonors  the  instrument;  or, 

4.  When  the  notice  is  waived  by  the  party  en- 
titled thereto. 

See  sec.  3130,  ante;  sec.  3159,  post. 


o29  NEGOTIABLE    INSTRUMENTS.         §§  3156-3160 

Subd.  1.  Reasonable  diligence:  See  sec.  3131, 
subd.  6,  wherein  presentment  is  excused  for  the 
same   reason. 

Subd.  2.  Notice  by  mail.— It  is  generally  held 
that  the  notice  should  be  addressed  to  the  post- 
office  at  or  nearest  to  the  party's  residence  or  place 
of  business:  See  sec.  3144,  subd.  3. 

AVaiver  of  protest  of  foreign  bill:  Sec.  3232,  post. 

Excuse  of  presentment  of  bill  of  exchange  and 
notice:  Sec.  3220. 

§  3156.    Presentment   and   notice   are   excused 
as  to  any  party  to  a  negotiable  instrument  who  , 
informs  the  holder,  within  ten  days  before  its  ma- 
turity, that  it  will  be  dishonored. 

§  3157.  If,  before  or  after  the  maturity  of  an 
instrument,  an  indorser  has  received  full  security 
for  the  amount  thereof  or  the  maimer  has  assigned 
all  his  estate  to  him  as  such  security,  presentment 
and  notice  to  him  are  excused. 

§  3158.  Delay  in  presentment,  or  in  giving  no- 
tice of  dishonor,  is  excused  when  caused  by  cir- 
cumstances which  the  party  delaying  could  not 
have  avoided  by  the  exercise  of  reasonable  care 
and  diligence. 

Delay  in  presentment  for  acceptance:  See  sec. 
3219.  post. 

Delay  in  presenting  bill  for  payment:  Sees.  3213. 
3214. 

Eeasonable  diligence:  See  sees.  3131,  3155,  and 
note;  sec.  3213. 

§  3159.  A  waiver  of  presentment  waives  notice 
of  dishonor  also,  unless  the  contrary  is  expressly 
stipulated;  but  a  waiver  of  notice  does  not  waive 
presentment. 

§  3160.    A  waiver  of  protest  on  any  negotiable 


li  3164-3165       NEGOTIABLE  INSTRUMENTS.  630 

instrument  other  than  a  foreign  bill  of  exchange 
waives  presentment  and  notice. 
Protest  of  foreign  bills:  See  sees.  322.5,  et  seq. 


ARTICLE  yil. 

EXTINCTION    OF     NEGOTIABLE    INSTRUMENTS. 

§  3164.     Obligation   of   party,    when   extinguished. 
§  3165.     Revival    of    obligation.     (Repealed.) 

§  3164.    The  obligation  of  a  party  to  a  nogotia 
ble  instrument  is  extinguished: 

1.  In  lil^e  manner  with  that  of  parties  to  con- 
tracts in  general;  or, 

2.  By  payment  of  the  amount  due  upon  the  in- 
strument, at  or  after  its  maturity,  in  good  faith 
and  in  the  ordinary  course  of  business,  to  any 
person  having  actual  possession  thereof  and  en- 
titled by  its  terms  to  payment. 

Extinction  of  obligations  in  general:  See  ante, 
sees.  1473  et  seq. 

§  3165.     [Repealed     March    30,     1874;    Amend- 
ments 1873-4,  264.     In  effect  July  1,  1874.] 
See,  however.  Code  Civ.  Proc,  sec.  440. 


CHAPTER  II. 

BILLS   OF  EXCHANGE. 

Article  I.  Form  and  Interpretation,  §§  3171-3177. 

II.  Days  of  Grace,   §  3181. 

III.  Presentment  for  Acceptance,   §§  3185-3189. 

IV.  Acceptance,   §§  3193-3199. 

V.  Acceptance  or  Payment  for  Honor,  §§  3203-3207. 

VI.  Presentment   for   Paj'-ment,    §§   3211-3214. 

VII.  Excuse  of  Presentment  and  Notice,  §§  3218-3220. 

VIII.  Foreign   Bills,    §§   3224-3238. 


'>>1  NEGOTIABLE   INSTRUMENTS.       §§  3171-3175 

AirncLE  I. 

FORM  AND   INTERPRETATION   OP  A   BILL. 

§  3171.  Bill  of  exchange,   what. 

J  3172.  Drawee,  in  case  of  need. 

§  3173.  Bill  in  parts  of  a  set. 

§  3174.  When  must  be  in  a  set. 

§  3175.  Presentment,  etc.,  of  part  of  set. 

§  3176.  Bill,    where   payable. 

§  3177.  Rights  and  obligations   of  drawer. 

§  3171.  A  bill  of  exchange  is  an  instrument, 
negotiable  in  form,  by  which  one,  who  is  called  the 
drawer,  requests  another,  called  the  drawee,  to 
pay  a  specified  sum  of  money. 

§  3172.  A  bill  of  exchange  may  give  the  name 
of  any  person  in  addition  to  the  drawee,  to  be  re- 
sorted to  in  case  of  need. 

Acceptance  or  payment  for  honor:  See  sees.  3203 
et  seq. 

Presentment  to  drawee  in  case  of  need:  Sec. 
3188. 

§  3173.  A  bill  of  exchange  may  be  drawn  in 
any  number  of  parts,  each  part  stating  the  exist- 
ence of  the  others,  and  all  forming  one  set. 

Damages  for  nonpayment  of  foreign  bill  drawn 
in  parts:  See  sec.  3234. 

§  3174.  An  agreement  to  draw  a  bill  of  ex- 
change binds  the  drawer  to  execute  it  in  three 
parts,  if  the  other  party  to  the  agreement  desires 
it. 

§  3175.  Presentment,  acceptance,  or  payment, 
of  a  single  part  in  a  set  of  a  bill  of  exchange,  is 
sufficient  for  the  whole. 

Presentment  for  acceptance:  See  sec.  3186. 
Presentment  to  joint  drawees:  See  sec.  3187. 


§§  3173-3177       NEGOTIABLE  INSTRUMENTS.  632 

§  3176.    A  bill  of  exchange  is  payable: 

1.  At  the  place  where,  by  its  terms,  it  is  made 
payable;  or, 

2.  If  it  specify  no  place  of  payment,  then  at 
the  place  to  which  it  is  addressed;  or, 

3.  If  it  be  not  addressed  to  any  place,  then  at 
the  place  of  residence  or  business  of  the  drawee,  or 
wherever  he  may  be  found. 

If  the  drawee  has  no  place  of  business,  or  if  his 
place  of  business  or  residence  [cannot]  with  rea- 
sonable diligence  be  ascertained,  presentment  for 
payment  is  excused,  and  the  bill  may  be  protested 
for  nonpayment.  L Amendment  approved  March 
30,  1874;  Amendments  1873-4,  p.  2(54.  In  effect 
July  1,  1874.] 

Negotiable  instrument  specifying  place  of  pay- 
ment: See  sees.  3130  et  seq. 

§  3177.  The  rights  and  obligations  of  the 
drawer  of  a  bill  of  exchange  are  the  same  as  those 
of  the  first  indorser  of  any  other  negotiable  in- 
strument. 

Rights  of  indorser:  See  ante,  sees.  3108  et  seq., 
3130  et  seq.,  and  3141  et  seq. 

Contract  of  indorser:  Sec.  311 G. 


633  NEGOTIABLE   INSTRUMENTS.        §§  3181-3186 

ARTICLE  II. 
DAYS   OF   GRACE. 

^  3181.    Days  of  grace  are  not  allowed. 

§  31S1.     Days  of  grace. 

ARTICLE  IIL 

PRESENTMENT   FOR   ACCEPTANCE. 

§  3185.    When  a  bill  may  be  presented. 

§  3186.    Presentment,   how  made. 

§  31S7.    Presentment  to  joint  drawees. 

§  31S8.    When  presentment  to  be  made  to  drawee  in  case  of 

need. 
5  31S9.    Presentment,  when  must  be  made. 

§  3185.  At  any  time  before  a  bill  of  exebauge  is 
payable  tbe  bolder  may  present  it  to  tbe  drawee 
for  acceptance,  and  if  acceptance  is  refused,  tbe 
bill  is  dislionored. 

Acceptance,  bow  made:  Sees.  3193  et  seq. 

Presentment  in  case  of  acceptance  for  bonor: 
Sees.  320().  3207. 

§  3186.  Presentment  for  acceptance  must  be 
made  in  tbe  following  manner,  as  nearly  as  by 
reasonable  diligence  it   is  practicable: 

1.  Tbe  bill  must  be  presented  by  tbe  bolder  or 
bis  agent; 

2.  It  must  be  presented  on  a  business  day.  and 
witbin  reasonable  bours: 

3.  It  must  be  presented  to  tbe  drawee,  or,  if  be 
be  absent  from  bis  place  of  residence  or  business, 
to  some  person  baving  cbarge  tbereof,  or  employed 
tberein;  and, 

4.  Tbe  drawee,  on  sucb  presentment,  may  post- 
pone bis  acceptance  or  refusal  until  the  next  day. 
If  tbe  drawee  bave  no  place  of  b^sine^5s.  or  if  bis 


§§  3187-3193        NEGOTIABLE    INSTRUMENTS.  634 

place  of  business  or  residence  cannot,  with  rea- 
sonable diligence,  be  ascertained,  presentment  for 
acceptance  is  excused,  and  the  bill  may  be  pro- 
tested for  nonacceptance.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  265.  In 
effect  July  1,  1874.] 

Presentment  of  part  of  set:  See  sec.  3175. 

Presentment  for  payment,  generally:  See  sees. 
3130  et  seq. 

Presentment  of  bill  of  exchange  for  payment: 
See  sees.  3211  et  seq. 

§  3187.  Presentment  for  acceptance  to  one  of 
several  joint  drawees,  and  refusal  by  him,  dis- 
penses with  presentment  to  the  others. 

§  3188.  A  bill  of  exchange  which  specifies  a 
drawee  in  case  of  need,  must  be  presented  to  him 
for  acceptance  or  payment,  as  the  case  may  be. 
before  it  can  be  treated  as  dishonored. 

Drawee  in  case  of  need:  Sec.  3172. 

§  3189.  When  a  bill  of  exchange  is  payable  at 
a  specified  time  after  sight,  the  drawer  and  in- 
dorsers  are  exonerated  if  it  is  not  presented  for 
acceptance  within  ten  days  after  the  time  which 
would  suffice,  with  ordinary  diligence,  to  forward 
it  for  acceptance,  unless  presentment  is  excused. 

ARTICLE  IV.     . 

ACCEPTANCE. 

§  3193.  Acceptance,  how  made. 

§  3194.  Holder  entitled  to  acceptance  on  face  of  bill. 

§  3195.  What  acceptance   sufficient  with   consent  of  holder. 

§  3196.  Acceptance  by  separate  instrument. 

§  3197.  Promise  to  accept,  when  equivalent  to  acceptance. 

§  3198.  Cancellation   of  acceptance. 

§  3199.  What  is  admitted  by  acceptance. 

§  3193.  An  acceptance  of  a  bill  must  be  made 
in  writing,  by  the  drawee  or  by  an  acceptor  for 


635  NEGOTIABLE    INSTRUMENTS.        §§  3194-3197 

honor,  and  may  be  made  by  the  acceptor  writing 
his  name  across  the  face  of  the  bill,  with  or  with- 
out other  words. 
Acceptance  for  honor:  See  sec.  3203. 

§  3194.  The  holder  of  a  bill  of  exchange,  if  en- 
titled to  an  acceptance  thereof,  may  treat  the  bill 
as  dishonored  if  the  drawee  refuses  to  write  across 
its  face  an  unqualified  acceptance. 

Acceptance  on  separate  paper:  See  sees.  3194, 
3195. 

§  3195.  The  holder  of  a  bill  of  exchange  may, 
without  prejudice  to  his  rights  against  prior  par- 
ties, receive  and  treat  as  a  sufficient  acceptance: 

1.  An  acceptance  written  upon  any  part  of  the 
bill,  or  upon  a  separate  paper; 

2.  An  acceptance  qualified  so  far  only  as  to 
make  the  bill  payable  at  a  particular  place  within 
the  city  or  town  In  which,  if  the  acceptance  was 
unqualified,  it  would  be  payable;  or, 

3.  A  refusal  by  the  drawee  to  return  the  bill 
to  the  holder  after  presentment,  in  which  case  the 
bill  is  payable  immediately,  without  regard  to  its 
terms. 

Acceptance  on  separate  paper:   See,   also,   next 
section. 
Acceptance,  generally:  Sec.  3193. 

§  3196.  The  acceptance  of  a  bill  of  exchange, 
by  a  separate  instrument,  binds  the  acce])tor  to 
one,  who,  upon  the  faith  thereof,  has  the  bill  for 
value  or  other  good  consideration. 

§  3197.  An  unconditional  promise,  in  writing, 
to  accept  a  bill  of  exchange,  is  a  sufficient  accept- 
ance thereof,  in  favor  of  every  person  who  upon 
the  faith  thereof  has  taken  the  bill  for  value  or 
other  good  consideration. 


§§  3198-3204       NEGOTIABLE    INSTRUMENTS.  636 

§  3198.  The  acceptor  of  a  bill  of  exchange  may 
cancel  his  acceptance  at  any  time  before  deliver- 
ing the  bill  to  the  holder,  and  before  the  holder 
has,  with  the  consent  of  the  acceptor,  transferred 
his  title  to  another  person  who  has  given  value  for 
it  upon  the  faith  of  such  acceptance. 

§  3199.  The  acceptance  of  a  bill  of  exchange 
admits  the  signature  of  a  drawer,  but  does  not 
admit  the  signature  of  any  indorser  to  be  genuine. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  p.  2G5.    In  effect  July  1,  1874.] 

Genuineness  of  signature  warranted  by  indorser: 
See  sec.  3116.  subd.  3. 


ARTICLE  V. 
ACCEPTANCE   OR  PAYMENT  FOR  HONOR. 

§  3203.    When  bill  may  be  accepted  or  paid  for  honor. 
§  3204.    Holder  of  bill  of  exchange  bound  to  accept  payment 

for  honor. 
§  3205.    Acceptance  for  honor,   how  made. 
§  3206.    How  enforced. 
§  3207.    Notice  of  dishonor  not  excused  by  acceptance  for 

honor, 

§  3203.  On  the  dishonor  of  a  bill  of  exchange 
by  the  drawee,  and,  in  case  of  a  foreign  bill,  after 
it  has  been  duly  protested,  it  may  be  accepted  or 
paid  by  any  person,  for  the  honor  of  any  party 
thereto. 

Drawee  in  case  of  need:  See  sec.  3172. 

Payment  of  foreign  bill  for  honor:  See  sec.  3233. 

Acceptor  for  honor  is  in  effect  the  maker  of  a 
promissory  note:  Sec.  3246. 

§  3204.  The  holder  of  a  bill  of  exchange  is  not 
bound  to  allow  it  to  be  accepted  for  honor,  but 
is  bound  to  accept  payment  for  honor. 

Acceptance,  how  made:   See  sees.  3193  et  seq. 

Acceptance  for  honor,  how  made:  Sec.  3205. 


637  NEGOTIABLE    INSTRUMENTS.        §§  3205-3207 

§  3205.  An  acceptor  or  payor  for  honor  must 
write  a  memorandum  upon  the  bill,  stating  therein 
for  Tvhose  honor  lie  accepts  or  pays,  and  must 
give  notice  to  such  parties,  with  reasonable  dili- 
gence, of  the  fact  of  such  acceptance  or  payment. 
Having  done  so,  he  is  entitled  to  reimbursement 
from  such  parties,  and  from  all  parties  prior  to 
them. 

Acceptance,  how  made  generally:  See  sees.  3193 
et  sea- 
Reimbursement.— In  case  of  foreign  bills  of  ex- 
change, the  one  who  pays  for  honor  must  declare 
in  the  presence  of  a  person  authorized  to  malie 
protest  for  whose  honor  he  pays  the  same:  Sec. 
3283. 

§  3206.  A  bill  of  exchange  which  has  been  ac- 
cepted for  honor  must  be  presented  at  its  maturity 
to  the  drawee  for  payment,  and  notice  of  its  dis- 
honor by  him  must  be  given  to  the  acceptor  for 
honor,  in  like  manner  as  to  an  indorser,  after 
which  the  acceptor  for  honor  must  pay  the  bill. 

Presentment  for  acceptance:  See  sec.  3186. 

Presentment  of  bill  of  exchange  for  payment: 
See  sees.  3211  et  sea. 

Presentment  of  negotiable  instruments  general- 
ly: Sees.  3130  et  sea. 

Notice  of  dishonor  of  foreign  bill:  See  sees.  3225 
et  sea. 

Notice  of  dishonor  generally:  See  sees.  3142  et 
seq. 

§  3207.  The  acceptance  of  a  bill  of  exchange 
for  honor  does  not  excuse  the  holder  from  giv- 
ing notice  of  its  dishonor  by  the  drawee. 

Presentment  of  bill  of  exchange  and  notice, 
when  excused:  See  sees.  3218-3220. 

Excuse  of  presentment  and  notice  generally: 
Sees.  3155  et  sea. 

Civ.    Code— 54 


§§  3211-3213       NEGOTIABLE    INSTRUMENTS.  638 

Notice  of  dishonor:  See  see.  3231  for  the  giving 
notice  of  protest,  and  sections  3142  et  seq.  for 
the  manner  of  giving  notice  of  dishonor  generally. 


ARTICLE  YI. 

PRESENTMENT  FOR  PAYMENT. 

§  3211.  Presentment,   when  bill  not  accepted,   where  made. 

§  3212.  Presentment   of  bill,   payable  at   particular  place. 

§  3213.  Effect  of  delay  in  presentment,  in  certain  cases. 

§  3214.  Effect  in  other  cases. 

§  3211.  If  a  bill  of  exchange  is  by  its  terms 
payable  at  a  particular  place,  and  is  not  accepted 
on  presentment,  it  must  be  presented  at  the  same 
place  for  payment,  when  presentment  for  pay- 
ment is  necessary. 

Presentment  of  negotiable  instruments  for  pay- 
ment: See  sees.  3130  et  sea. 

Presentment  for  acceptance:  See  sees.  3186  et 
sea. 

§  3212.  A  bill  of  exchange,  accepted  payable 
at  a  particular  i)lace,  must  be  presented  at  that 
place  for  payment,  when  presentment  for  payment 
is  necessary,  and  need  not  be  presented  elsewhere. 

Place  of  payment,  presentment  at:  See  sec.  3131, 
subd.  3. 

§  3213.  If  a  bill  of  exchange,  payable  at  sight 
or  on  demand,  without  interest,  is  not  duly  pre- 
sented for  payment  within  ten  days  after  the 
time  in  which  it  could,  with  reasonable  diligence, 
be  transmitted  to  the  proper  place  for  such  pre- 
sentment, the  drawer  and  indorsers  are  exoner- 
ated, unless  such  presentment  is  excused. 

See,  also,  generally  sees.  3131,  3155. 

Apparent  maturity  of  bill  of  exchange:  See  sec. 
3134,  ante. 


639  NEGOTIABLE    INSTRUMENTS.        §§  3214-3220 

§  3214.  Mere  delay  in  presenting  a  bill  of  ex- 
change payable  with  interest,  at  sight  or  on  de- 
mand, does  not  exonerate  any  party  thereto. 

Delay,  when  excused:  See  sec.  3158,  ante,  and 
sec.  3219.  post. 

ARTICLE  YII. 

EXCUSE  OF  PRESENTMENT  AND  NOTICE. 

§  3218.    Presentment,    when   excused. 

§  3219.    Delay,  when  excused. 

§  3220.     Presentment  and  notice,   when  excused. 

§  3218.  The  presentment  of  a  bill  of  exchange 
for  acceptance  is  excused  if  the  drawee  has  not 
capacity  to  accept  it. 

Excuse  of  presentment  and  notice,  generally:  See 
sees.  3155  et  sea.,  ante. 

Delay  in  presentment  of  check:  Sec.  3255. 

§  3219.  Delay  in  the  presentment  of  a  bill  of 
exchange  for  acceptance  is  excused,  when  caused 
by  circumstances  over  which  the  holder  has  no 
control. 

Delay,  when  excused:  See  sees.  3158,  3214,  ante. 

§  3220.  Presentment  of  a  bill  of  exchange  for 
acceptance  or  payment,  and  notice  of  its  dishonor, 
are  excused  as  to  the  drawer,  if  he  forbids  the 
drawee  to  accept,  or  the  acceptor  to  pay  the  bill; 
or,  if,  at  the  time  of  drawing,  he  had  no  reason 
to  believe  that  the  drawee  would  accept  or  pay  the 
same. 


§§  3224-3227        NEGOTIABLE    INSTRUMENTS.  640 

ARTICLE  VIII. 

FOREIGN   BILLS. 

I  3224.  Definitions. 

§  3225.  Protest  necessary. 

§  3226.  Protest,    by   whom   made. 

§  3227.  Protest,   how  made. 

§  3228,  Protest,    where   made. 

§  3229.  Protest,   when   to   be   made. 

§  3230.  Protest,    when    excused. 

§  3231.  Notice   of   protest,   how  given. 

§  3232.  Waiver    of    protest. 

§  3233.  Declaration   before    payment   for   honor. 

§  3234.  Damages  allowed  on  dishonor  of  foreign  bill. 

§  3235.  Rate   of   damages. 

§  3236.  Interest   on   amount   of   protested   bill. 

§  3237.  Damages,    how    estimated. 

§  3238.  Same. 

§  3224.  An  inland  bill  of  exchange  is  one 
dra^'n  and  payable  within  this  State.  All  others 
are  foreign. 

Form  and  interpretation  of  bills  of  exchange: 
See  sec.  3171. 

§  3225.  Notice  of  the  dishonor  of  a  foreign 
bill  of  exchange  can  be  given  only  by  notice  of  its 
protest. 

Dishonor  of  negotiable  instruments  generally: 
See  sees.  3141  et  seq.,  ante. 

Waiver  of  protest  does  not  waive  presentment 
and  notice  in  the  case  of  a  foreign  bill  of  ex- 
change: Sec.  3160,  ante. 

§  3226.  Protest  must  be  made  by  a  notary  pub- 
lic, if  with  reasonable  diligence  one  can  be  ob- 
tained; and  if  not,  then  by  any  reputable  person 
in  the  presence  of  two  witnesses. 

§  3227.  Protest  must  be  made  by  an  instru- 
ment in  writing,  giving  a  literal  copy  of  the  bill 
of  exchange,  with  all  that  is  written  thereon,  or 


641  NEGOTIABLE    INSTRUMENTS.        §§  3228-3232 

annexing-  the  original;  stating  the  presentment, 
and  the  manner  in  whicli  it  was  made;  the  pres- 
ence or  absence  of  the  drawee  or  acceptor,  as  the 
case  may  be;  the  refusal  to  accept  or  to  pay,  or 
the  inability  of  the  drawee  to  give  a  binding  ac- 
ceptance; and  in  case  of  refusal,  the  reason  as- 
signed, if  any;  and,  finally,  protesting  against  all 
the  parties  to  be  charged. 

§  3228.  A  protest  for  nonacceptance  must  be 
made  in  the  city  or  town  in  wliich  the  bill  is  pre- 
sented for  acceptance,  and  a  protest  for  nonpay- 
ment in  the  city  or  town  in  which  it  is  presented 
for  payment. 

§  3229.  A  protest  must  be  noted  on  the  day  of 
presentment,  or  on  the  next  business  day;  but  it 
may  be  wi'itten  out  at  any  time  thereafter. 

§  3230.  The  want  of  a  protest  of  a  foreign  bill 
of  exchange,  or  delay  in  mailing  the  same,  is  ex- 
cused in  lil^e  cases  with  the  want  or  delay  of  pre- 
sentment. 

Excuse  of  presentment  and  notice:  See  sees. 
3218  Gt  sea.,  3214. 

§  3231.  Notice  of  protest  must  be  given  in  the 
same  manner  as  notice  of  dishonor,  except  that  it 
may  be  given  by  the  notarv  who  makes  the  pro- 
test. 

Notice  of  dishonor,  how  given:  See  ante,  sees. 
3142  et  sea. 

Notice  of  dishonor,  by  whom  given:  Sec.  3142, 
ante. 

§  3232.  If  a  foreign  bill  of  exchange  on  its  face 
waives  protest,  notice  of  dishonor  may  be  given 
to  any  party  thereto,  in  lilce  manner  as  of  an  in- 
land bill;  except  that  if  any  indorser  of  such  a 
bill    expressly   requires   protest   to   be    made,    bv 


§§  3233-3235       NEGOTIABLE    INSTRUMENTS.  642 

a  direction  written  on  the  bill  at  or  before  his 
indorsement,  protest  must  be  made,  and  notice 
thereof  given  to  him  and  to  all  subsequent  in- 
dorsers. 

Notice  of  dishonor:  See  sees.  3142  et  seq. 

Waiver  of  notice:  See  sec.  3155,  subd.  4. 

§  3233.  One  who  pays  a  foreign  bill  of  ex- 
change for  honor  must  declare,  before  payment, 
in  the  presence  of  a  person  authorized  to  malie  pro- 
test, for  whose  honor  he  pays  the  same,  in  order 
to  entitle  him  to  reimbursement. 

Payment  for  honor:  See  sec.  3203. 

§  3234.  Damages  are  allowed  as  hereinafter 
prescribed,  as  a  full  compensation  for  interest  ac- 
crued before  notice  of  dishonor,  re-exchange,  ex- 
penses, and  all  other  damages,  in  favor  of  holders 
for  value  only,  upon  bills  of  exchange  drawn  or 
negotiated  within  this  State,  and  protested  for 
nonacceptance  or  nonpayment. 

§  3235.  Damages  are  allowed  under  the  last 
section  upon  bills  drawn  upon  any  person: 

1.  If  drawn  upon  any  person  in  this  State,  two 
dollars  upon  each  one  hundred  dollars  of  the  prin- 
cipal sum  specified  in  the  bill; 

2.  If  drawn  upon  any  person  out  of  this  State, 
but  in  any  of  the  other  States  west  of  the  Rocky 
Mountains,  five  dollars  upon  each  hundred  dollars 
of  the  principal  sum  specified  in  the  bill; 

3.  If  drawn  upon  any  person  in  any  of  the 
United  States  east  of  the  Rocky  Mountains,  ten 
dollars  upon  each  hundred  dollars  of  the  principal 
sum  specified  in  the  bill; 

4.  If  drawn  upon  any  person  in  any  place  in  a 
foreign  countrj^  fifteen  dollars  upon  each  hun- 
dred dollars  of  the  principal  sum  specified  in  the 
bill. 


643  NEGOTIABLE    INSTRUMENTS.        §§  3236-3245 

§  3236.  P'rom  the  time  of  notice  of  dishonor 
and  demand  of  payment,  lawful  interest  must  be 
allowed  upon  the  aggregate  amount  of  the  princi- 
pal sum  specified  in  the  bill,  and  the  damages 
mentioned  in  the  preceding  section. 

§  3237.  If  the  amount  of  a  protested  bill  of  ex- 
change is  expressed  in  money  of  the  United 
States,  damages  are  estimated  upon  such  amount 
without  regard  to  the  rate  of  exchange. 

§  3238.  If  the  amount  of  a  protested  bill  of  ex- 
change is  expressed  in  foreign  money,  damages 
are  estimated  upon  the  value  of  a  similar  bill  at 
the  time  of  protest,  in  the  place  nearest  to  the 
place  where  the  bill  was  negotiated  and  where 
such  bills  are  currently  sold. 


CHAPTER  III. 

PROMISSORY   NOTES. 

§  3244.  Promissory  note,  what. 

§  3245.  Certain  instrum'ents  promissory  notes. 

§  3246.  Bill   of   exchange,    when    converted   into    a   note. 

§  3247.  Certain  sections  applicable  to  notes. 

§  3248.  Effect  of  delay  in  presentment. 

§  3244.  A  promissory  note  is  an  Instrument, 
negotiable  in  form,  whereby  the  signer  promises 
to  pay  a  specified  sum  of  money. 

Place  of  payment  not  specified:  See  ante,  sec. 
3100. 

Interpretation  of  negotiable  instruments  gener- 
ally: See  sees.  3099  et  sea. 

§  3245.  An  instrument  in  the  form  of  a  bill  of 
exchange,  but  drawn  upon  and  accepted  by  the 
drawer  himself,  is  to  be  deemed  a  promissory 
note. 

Negotiable  instrument  payable  to  order  of 
maker:  See  ante,  sec.  8102. 


§§  3246-3255       NEGOTIABLE    INSTRUMENTS.  644 

§  3246.  A  bill  of  excliange,  if  accepted,  with 
the  consent  of  the  owner,  by  a  person  other  than 
the  drawee,  or  an  acceptor  for  honor,  becomes  in 
effect  the  promissory  note  of  such  person,  and  all 
prior  parties  thereto  are  exonerated. 

Acceptor  for  honor:  See  sees.  3203  et  seq. 

§  3247.  Chapter  I.  of  this  title,  and  sections 
3181  and  3214  of  this  Code,  apply  to  promissory 
notes. 

Chapter  I  of  this  title:  See  sees.  3086-3165. 

§  3248.  If  a  promissory  note,  payable  on  de- 
mand, or  at  sight,  without  interest,  is  not  duly 
presented  for  payment  within  six  months  from 
its  date,  the  indorsers  thereof  are  exonerated,  un- 
less such  presentment  is  excused. 

Apparent  maturity  of  a  promissory  note:  See 
sec.  3135. 

Presentment,  when  excused:  See,  generally,  sees. 
3155  et  sea. 

CHAPTER  lY. 

CHECKS. 

§  3254.     Check,  what. 

§  3255.    Rules  applicable  to  checks. 

§  3254.  A  check  is  a  bill  of  exchange  drawn 
upon  a  banli  or  banker,  or  a  person  described  as 
such  upon  the  face  thereof,  and  payable  on  de- 
mand, without  interest. 

§  3255.  A  check  is  subject  to  all  the  provisions 
of  this  Code  concerning  bills  of  exchange,  except 
that: 

1.  The  drawer  and  indorsers  are  exonerated  by 
delay  in  presentment,  only  to  the  extent  of  the  in- 
jury which  they  suffer  thereby; 

2.  An  indorsee,  after  its  apparent  maturity,  but 


t)1.5  GENERAL   PROVISIONS.  §§  3261-3268 

without  actual  notice  of  its  dishonor,  acquires  a 
title  equal  to  that  of  an  indorsee  before  such 
period. 

Delay  in  presentment  of  bills  of  exchange:  See 
sees.  3218-3220. 

Indorsee  in  due  course:  Sec.  3123,  ante. 


CHAPTER  V. 

BONDS,    BANK    NOTES,    AND    CERTIFICATES    OF    DE- 
POSIT. 

§  3261.     Bank    note    negotiable    after    payment. 
§  3262.    Title   acquired  by   indorsee.     (Repealed.) 

§  3261.  A  bank  note  remains  negotiable,  even 
after  it  has  been  paid  by  the  maker. 

§  3262.  [Repealed  March  30,  1874:  Amend- 
ments 1873-4,  265.     In  effect  July  1,  1874.] 


TITLE  XVI. 

GENERAL  PROVISIONS. 
§  3268.    Parties  may  waive  provisions  of  Code. 

§  3268.  Except  where  it  is  otherwise  declared, 
the  provisions  of  the  foregoing  fifteen  titles  of  this 
part,  in  respect  to  the  rights  and  obligations  of 
parties  to  contracts,  are  subordinate  to  the  inten- 
tion of  the  parties,  when  ascertained  in  the  man- 
ner prescribed  by  the  Chapter  on  the  Interpreta- 
tion of  Contracts;  and  the  benefit  thereof  may  be 
waived  by  any  party  entitled  thereto,  unless  such 
waiver  would  be  against  public  policy. 

Interpretation  of  contracts:  See  ante.  sec.  MVAr^ 
<it  seq. 


DIVISION  FOURTH. 


Part  I.    Relief,  §§  3274-3423. 

II.    Special    Relations    of    Debtor 
and    Creditor,  §§  3429-3473. 

III.  Nuisance,  §§  3479-3503. 

IV.  Maxims    of    Jurisprudence,   §§ 

3509-3543. 


PART  I. 


RELIEF. 

Title  I.     Relief  in  General,  sees.  3274-3275. 
II.    Compensatory  Relief,  sees.  3281-3360. 
III.    Specific  and  Preventive  Relief,  sees.  3366- 
3423. 

TITLE   I. 

RELIEF  IN  GENERAL. 

§  3274.     Species  of  relief. 

!5  3275.     Relief  in  case  of  forfeiture. 

§  3274.  As  a  general  rule,  compensation  is  the 
relief  or  remedy  provided  by  the  law  of  this 
State  for  the  violation  of  private  rights,  and  the 
means  of  securing  their  observance;  and  specific 
and  preventive  relief  may  be  given  in  no  other 
cases  than  those  specified  in  this  part  of  the  Civil 
Code. 

§  3275.  "Whenever,  by  the  terms  of  an  obliga- 
tion, a  party  thereto  incurs  a  forfeiture,  or  a  loss 
in  the  nature  of  a  forfeiture,  by  reason  of  his  fail- 
ure to  comply  with  its  provisioiis,  he  may  be  re- 
lieved therefrom,  upon  mailing  full  compensation 
to  the  other  party,  except  in  case  of  a  grossly  neg- 
ligent, willful,  or  fraudulent  breach  of  duty. 

Civ.   Code— 55 


3281  COMPENSATORY    RELIEF.  650 


TITLE    II. 
COMPENSATORY  RELIEF. 

Chapter  I.    Damages  in  General,  sees.  3281-3294. 
II.    Measure  of  Damages,  sees.  3300-3360. 

CHAPTER  I. 

DAMAGES   IN   GENERAL. 

Article  I.     General  Principles,  §§  3281-3283, 

II.    Interest   as    Damages,    §§    3287-3290. 
III.    Exemplary  Damages,  §  3294. 

ARTICLE  I. 
GENERAL   PRINCIPLES. 

§  328L    Person  suffering   detriment  may   recover   damages. 

§  3282.    Detriment,    what. 

§  3283.     Injuries  resulting  or  probable  after  suit  brought. 

§  3281.  Every  person  who  suffers  detriment 
from  the  unlawful  act  or  omission  of  another  inay 
recover  from  the  person  in  fault  a  compensation 
therefor  in  money,  which  is  called  damages. 

Note.- -As  by  the  Political  Code,  3274,  in  judg- 
ments and  executions  the  amount  thereof  must  be 
st.ated,  as  near  as  niny  be,  in  dollars  and  cents,  re- 
jecting fractions,  it  is  no  doubt  proper  to  apply 
the  same  rule  to  the  claim  for  damages  in  the 
complaint. 

Exem'plary  damages:  See  sec.  3294.  Damages 
are  exclusive  of  exemplary  damages  and  interest 
except  where  those  are  expressly  mentioned:  Sec. 
3357.   post. 

See  sec.  G57.  also. 

Damages  must  be  reasonable:  See.  3351. 


651  COMPENSATORY   RELIEF.  §§  3283-3288 

Limit  of  recovery.— No  person  can  recover  a 
greater  amount  in  damages  for  the  breach  of  an 
obligation  tban  he  could  have  gained  by  the  full 
performance  thereof  on  both  sides,  except  in  the 
cases  specified  in  the  articles  on  exemplary  dam- 
ages and  penal  damages,  and  in  sees.  3319,  3339, 
3340,  and  3358,  post. 

Damages  for  torts:  Sees.  3333  et  sea. 

Damages  for  breach  of  r>ontract:  Sees.  3300  et 
seq. 

§  3282.  Detriment  is  a  loss  or  harm  suffered  in 
person  or  property. 

§  3283.  Damages  may  be  awarded,  in  a  judi- 
cial proceeding,  for  detriment  resulting  after  the 
commencement  thereof  or  certain  to  result  in  the 
future. 


ARTICLE  IL 

INTEREST  AS  DAMAGES. 

§  3287.     Person   entitled    to    recover    damages    may    recover 

interest  ttiereon. 
§  3288.     In  actions  other  than  contract. 
§  3289.     Limit  of  rate  by  contract. 
§  3290.    Acceptance  of  principal  waives  claim  to  interest. 

§  3287.  Every  person  who  is  entitled  to  recover 
damages  certain,  or  capable  of  being  made  certain 
by  calculation,  and  the  right  to  recover  which  is 
vested  in  him  upon  a  particular  day,  is  entitled 
also  to  recover  interest  thereon  from  that  day,  ex- 
cept during  such  time  as  the  debtor  is  prevented 
by  law,  or  by  the  act  of  the  creditor,  from  pay- 
ing the  debt. 

As  to  what  is  legal  rate:  See  sec.  1917,  ante. 

Interest  in  actions  for  conversion:  See  sec.  3336. 

§  3288.  In  an  action  for  the  breach  of  an  obli- 
gation not  arising  from  contract,  and  in  every  case 


§§  3289-3294.  COMPENSATORY    RELIEF.  6.52 

of  oppression,  fraud,  or  malice,  interest  may  be 
given,  in  the  discretion  of  the  jury. 
Interest  in  trover  and  conversion:  See  sec.  3336. 

§  3289.  Any  legal  rate  of  Interest  stipulated 
by  a  contract  remains  chargeable  after  a  breach 
thereof,  as  before,  until  the  contract  is  super- 
seded by  a  verdict  or  other  new  obligation. 

§  3290.  Accepting  payment  of  the  whole  prin- 
cipal, as  such,  waives  all  claim  to  interest. 


ARTICLE  HI. 

EXEMPLARY  DAMAGES. 
§  3294.    Exemplary  damages,   in  what  cases  allowed. 

§  3294.  In  any  action  for  the  breach  of  an  obli- 
gation not  arising  from  contract,  where  the  de- 
fendant has  been  guilty  of  oppression,  fraud,  or 
malice,  actual  or  presumed,  the  jury,  in  addition 
to  the  actual  damages,  may  give  damages  for  the 
sake  of  example,  and  by  way  of  punishing  the  de- 
fendant. 

Damages  for  wrongs,  generally:  See  sees.  3333, 
post,  et  seq. 

Penal  damages:  See  post,  sees.  3344  et  seq. 


653  COMPENSATORY    RELIEF.  §  3300 

CHAPTEll  II. 

MEASURE  OF  DAilAGES. 

Article  I.  Damages  for  Breach  of  Contract,  §§  3300-3319. 

II.  Damages   for   Wronprs,    §§   3333-3340. 

III.  Penal  Damages,  §§  3'344-3248. 

IV.  General  Provisions,  §§  3353-3360. 

ARTICLE  I. 

DAMAGES  FOR  BREACPI  OF  CONTRACT. 

§  3300.     Measure  of  damages  for  breach  or  contract. 

§  3301.     Damages  must  be  certain. 

§  3302.     Breach  of  contract  to  pay  liquidated  sum. 

§  3303.     Dishonor   of  foreign  bills   of  exchange. 

§  3304.  Detriment  caused  by  breach  of  covenant  of  seisin, 
&c.,  what  is. 

§  3305.  Detriment  caused  by  breach  of  covenant  against  in- 
cumbrances,  is  what. 

§  3306.     Breach  of  agreement  to  convey  real  property. 

f  3307.    Breach  of  agreement  to  buy  real  property. 

§  3308.  Breach  of  agreement  to  sell  personal  property  not 
paid   for. 

§  3309.  Breach  of  agreement  to  sell  personal  property  paid 
for. 

§  3310.  Breach  of  agreement  to  pay  for  personal  property 
sold. 

§  3311.     Breach  of  agreement  to  buy  personal  property. 

§  3312.     Breach  of  warranty  of  title  to  personal  property. 

§  3313.     Breach  of  warranty  of  quality  of  personal  property. 

§  3314.     Breach  of  warranty  of  quality  for  special  purpose. 

§  3315.     Breach  of  carrier's  obligation  to  receive  goods,  &c. 

§  3316.    Breach   of   carrier's  obligation   to   deliver. 

§  3317.     Carrier's  delay. 

§  3318.    Breach  of  warranty  of  authority. 

§  3319.     Breach  of  promise  of  marriage. 

§  3300.  For  the  breach  of  an  obligation  arising 
from  contract,  the  measure  of  damages,  except 
where  otherAvise  expressly  provided  by  this  Code, 
is  the  amount  which  will  compensate  the  party  ag- 
grieved for  all  the  detriment  proximately  caused 
thereby,  or  which  in  the  ordinary  course  of 
things     would     be     likely  to     result     therefrom. 


§§  3301-3304  COMPENSATORY    RELIEF.  654 

[Amendment  approved  March  30,  1874;  Amend- 
ments 1ST3-4,  p.  265.     In  effect  July  1,  1874.] 

Note.— Original  section  contained  this  qualifying 
clause,  introduced  after  "thereby:"  "Which  the 
I)arty  in  fault  had  notice,  at  the  time  of  entering 
into  the  contract,  or  at  any  time  before  the  breach 
and  while  it  was  in  his  power  to  perform  the  con- 
tract upon  his  part,  would  be  lil^ely  to  result  from 
such  breach."  This  clause,  omitted  by  the  code 
examiners,  distinguished  the  measure  of  damages 
in  cases  of  breach  of  contract  from  that  adopted 
in  actions  for  torts  in  the  particular  of  knowledge 
of  the  damage  that  would  result:   See  sec.  3333. 

As  to  damages  revoking  submission  to  arbitra- 
tion, see  sec.  1290,  Code  Civ.  Proc. 

§  3301.    No   damages   can   be   recovered   for  a       ^ 
breach  of  contract  which  are  not  clearly   ascer- 
tainable in  both  their  nature  and  origin. 

§  3302.  The  detriment  caused  by  the  breach  of 
an  obligation  to  pay  money  only,  is  deemed  to  be 
the  amount  due  by  the  terms  of  the  obligation, 
with  interest  thereon. 

§  3303.  For  the  dishonor  of  foreign  bills  of  ex- 
change the  damages  are  prescribed  by  sections 
3235,  3237,  and  3238. 

§  3304.  The  detriment  caused  by  the  breach  of 
a  covenant  of  "seizin,"  of  "right  to  convey,"  of 
"warranty,"  or  of  "quiet  enjoyment,"  in  a  grant 
of  an  estate  in  real  property,  is  deemed  to  be: 

1.  The  price  paid  to  the  grantor;  or,  if  the 
breach  is  partial  onlj%  such  proportion  of  the  price 
as  the  value  of  the  property  affected  by  the 
breach  bore  at  the  time  of  the  grant  to  the  value 
of  the  Avhole  property'; 

2.  Interest  thereon  for  the  time  during  which 


655  COMPENSATORY    RELIEF.  §§  3305-330S 

the  grautee  derived  uo  beuelit  from  the  property, 
not  exceeding  five  years: 

3.  Any  expenses  properly  incurred  by  the  cove- 
nantee in  defending  his  possession. 

§  3305.  The  detriment  caused  by  the  breach  of 
a  covenant  against  encumbrances,  in  a  grant  of  an 
estate  in  real  property,  is  deemed  to  be  the 
amount  which  has  been  actually  expended  by  the 
covenantee  in  extinguishing  either  the  principal 
or  interest  thereof,  not  exceeding  in  the  former 
case  a  proportion  of  the  price  paid  to  the  grantor 
equivalent  to  the  relative  value  at  the  time  of  the 
grant  of  the  property  affected  by  the  breach,  as 
compared  with  the  whole,  or,  in  the  latter  case, 
interest  on  a  like  amount. 

§  3306.  The  detriment  caused  by  the  breach 
of  an  agreement  to  convey  an  estate  in  real  prop- 
erty is  deemed  to  be  the  price  paid,  and  the  ex- 
penses properly  incurred  in  examining  the  title 
and  preparing  the  necessary  papers,  with  interest 
thereon;  but  adding  thereto,  in  case  of  bad  faith, 
the  difference  between  the  price  agreed  to  be  paid 
and  the  value  of  the  estate  agreed  to  be  conveyed, 
at  the  time  of  the  breach,  and  the  expenses  prop- 
erly incurred  in  preparing  to  enter  upon  the  land. 

§  3307.  a'he  detriment  caused  by  the  breach  of 
an  agreement  to  purchase  an  estate  in  real  prop- 
erty is  deemed  to  be  the  excess,  if  any,  of  the 
amount  which  would  have  been  due  to  the  seller, 
under  the  contract,  over  the  value  of  the  property 
to  him. 

§  3308.  The  detriment  caused  by  the  breach  of 
a  seller's  agreement  to  deliver  personal  property, 
the  price  of  which  has  not  been  fully  paid  in  ad- 
vance, is  deemed  to  be  the  excess,  if  any,  of  the 
vrdue  of     the  property  to     the     buyer,  over  the 


§§  3309-3313  COMPENSATORY    RELIEF.  656 

amount  wliicli  would  have  been  due  to  the  seller 
under  the  contract,  if  it  had  been  fulfilled. 

§  3309.  The  detriment  caused  by  the  breach  of 
a  seller's  agreement  to  deliver  personal  property, 
the  price  of  which  has  been  fully  paid  to  him  in 
advance,  is  deemed  to  be  the  same  as  in  case  of 
wrongful  conversion. 

Conversion,  measure  of  damages  for:  Sec.  3336. 

§  3310.  The  detriment  caused  by  the  breach  of 
a  buyer's  agreement  to  accept  and  pay  for  per- 
sonal property,  the  title  of  which  is  vested  in  him, 
is  deemed  to  be  the  contract  price. 

§  3311.  The  detriment  caused  by  the  breach  of 
a  buyer's  agreement  to  accept  and  pay  for  per- 
sonal property,  the  title  to  which  is  not  vested  in 
him,  is  deemed  to  be: 

1.  If  the  property  has  been  resold,  pursuant  to 
section  3049,  the  excess,  if  any,  of  the  amount  due 
from  the  buyer,  under  the  contract,  over  the  net 
proceeds  of  the  resale;  or. 

2.  If  the  property  has  not  been  resold  in  the 
manner  prescribed  by  section  3049,  the  excess,  if 
any,  of  the  amount  due  from  the  buyer,  under 
the  contract,  over  the  value  to  the  seller,  together 
with  the  excess,  if  any,  of  the  expenses  properly 
incurred  in  carrying  the  property  to  marl^et,  over 
those  which  would  have  been  incurred  for  the 
carriage  thereof,  if  the  buyer  had  accepted  it. 

§  3312.  The  detriment  caused  by  the  breach  of 
a  warranty  of  the  title  of  personal  property  sold  is 
deemed  to  be  the  value  thereof  to  the  buyer,  when 
lie  is  deprived  of  its  possession,  together  with  any 
costs  which  he  has  become  liable  to  pay  in  an  ac- 
tion brought  for  the  property  by  the  true  owner. 

§  3313.    The  detriment  caused  by  the  breach  of 


657  COMPENSATORY    RELIEF.  §§  3314-3317 

a  Trarranty  of  the  quality  of  personal  property  is 
deemed  to  be  the  excess,  if  any,  of  the  value 
which  the  property  would  have  had  at  the  time 
to  which  the  warranty  referred,  if  it  had  been 
<3omplied  with,  over  its  actual  value  at  that  time. 

§  3314.  The  detriment  caused  by  the  breach  of 
a  warranty  of  the  fitness  of  an  article  of  personal 
property  for  a  particular  purpose  is  deemed  to  be 
that  which  is  defined  by  the  last  section,  together 
with  a  fair  compensation  for  the  loss  incurred  by 
an  effort  in  good  faith  to  use  it  for  such  pur- 
pose. 

§  3315.  The  detriment  caused  by  the  breach  of 
a  carrier's  obligation  to  accept  freight,  rnessages, 
or  passengers  is  deemed  to  be  the  difference  be- 
tween the  amount  which  he  had  a  right  to  charge 
for  the  carriage  and  the  amount  which  it  would 
be  necessary  to  pay  for  the  same  service  when  it 
ought  to  be  performed. 

Obligation  to  receive  freight:  Sec.  2169. 

§  3316.  The  detriment  caused  by  the  breach  of 
a  carrier's  obligation  to  deliver  freight,  where  he 
has  not  converted  it  to  his  own  use,  is  deemed 
to  be  the  value  thereof  at  the  place  and  on  the 
day  at  which  it  should  have  been  delivered,  de- 
ducting the  freightage  to  which  he  would  have 
been  entitled  if  he  had  completed  the  delivery. 

Delivery  of  property  by  carrier:  See  ante,  sees. 
2118,  2119. 

Stoppage  in  transitu:  See  ante,  sees.  3076  et  seq. 

§  3317.  The  detriment  caused  by  a  carrier's  de- 
lay in  the  delivery  of  freight  is  deemed  to  be  the 
depreciation  in  the  intrinsic  value  of  the  freight 
during  the  delay,  and  also  the  depreciation,  if  any, 
in  the  marliet  value  thereof,  otherwise  than  by 
reason  of  a  depreciation  in  its  intrinsic  value,  at 


§§  3318-3333  COMPENSATORY    RELIEF.  658 

the  place  where  it  ought  to  have  been  delivered, 

and  between  the  day  at  which  it  ought  to  have 

been  delivered  and  the  day  of  its  actual  delivery. 

Carrier's  liability  for  delay:  See  ante,  sec.  2196. 

§  3318.  The  detriment  caused  by  the  breach  of 
a  warranty  of  an  agent's  authority  is  deemed  to 
be  the  amount  which  could  have  been  recovered 
and  collected  from  his  principal  if  the  warranty 
had  been  complied  with,  and  the  reasonable  ex- 
penses of  legal  proceedings  taken,  in  good  faith, 
to  enforce  the  act  of  the  agent  against  his  prin- 
cipal. 

Warranty  of  authority  by  one  assuming  to  act 
as  agent:  See  ante,  sec.  2342. 

§  3319.  The  damages  for  the  breach  of  a  prom- 
ise of  marriage  rest  in  the  sound  discretion  of  the 
jury. 


ARTICLE  II. 

DAMAGES  FOR  WRONGS. 

§  3333.  Breach  of  obligation  other  than  contract. 

§  3334.  Wrongful    occupation   of   real    property. 

§  3335.  Willful  holding  over. 

§  3333.  Conversion  of  personal   property. 

§  3337.  Same. 

§  3338.  Damages   of  lienor. 

§  3339.  Seduction. 

§  3340.  Injuries  to  animals. 

§  3341.  Same. 

§  3333.  For  the  breach  of  an  obligation  not 
arising  from  contract,  the  measure  of  damages,  ex- 
cept where  otherwise  expressly  provided  by  this 
Code,  is  the  amount  which  will  compensate  for 
all  the  detriment  proximately  caused  thereby, 
whether  it  could  have  been  anticipated  or  not. 

Sec.  1840,  ante. 

Officer  seizing  mortgaged  chattel:  See  sec.  29G9. 


659  COMPENSATORY    RELIEF.  §§  3334-3337 

§  3334.  The  detriment  caused  by  the  wrongful 
occupation  of  real  property,  in  cases  not  embraced 
in  sections  3335,  3344,  and  3345  of  this  Code,  or 
section  1174  of  the  Code  of  Civil  Procedure,  is 
deemed  to  he  the  value  of  the  use  of  the  property 
for  the  time  of  such  occupation,  not  exceeding 
five  years  next  preceding  the  commencement  of 
the  action  or  proceeding  to  enforce  the  right  to 
damages,  and  the  costs,  if  any,  of  recovering  the 
possession. 

§  3335.  For  willfully  holding  over  real  prop- 
erty, by  a  person  who  entered  upon  the  same,  as 
guardian  or  trustee  for  an  infant,  or  by  right  of  an 
estate  terminable  with  any  life  or  lives,  after  the 
termination  of  the  trust  or  particular  estate,  with- 
otit  the  consent  of  the  party  immediately  entitled 
after  such  termination,  the  measure  of  damages 
is  the  value  of  the  profits  received  during  such 
liolding  over. 

Termination  of  trustees'  estate:  See  sec.  871. 

§  3336.  The  detriment  caused  by  the  wrongful 
conversion  of  personal  property  is  presumed  to  be: 

1.  The  value  of  the  property  at  the  time  of  the 
conversion,  with  the  interest  from  that  time;  or, 
where  the  action  has  been  prosecuted  with  reason- 
able diligence,  the  highest  market  value  of  the 
property  at  any  time  between  the  conversion  and 
the  verdict,  without  interest,  at  the  option  of  the 
injured  party;  and, 

2.  A  fair  compensation  for  the  time  and  money 
properly  expended  in  pursuit  of  the  property. 
[Amendment  approved  January  22,  1878;  Amend- 
ments 1877-§,  p.  89.     In  effect  January  22,  1878.] 

Nondelivery  of  chattel  sold  and  paid  for  a  con- 
version: Sec.  3309. 

§  3337.  The  presumption  declared  by  the  last 
section  can  not  be  repelled,  in  favor  of  one  whose 


§§  3338-3341  COMPENSATORY    RELIEF.  660 

possession  was  wrongful  from  the  beginning,  by 
his  subsequent  application  of  the  property  to  the 
benefit  of  the  owner,  without  his  consent. 

§  3338.  One  having  a  mere  lien  on  personal 
property  cannot  recover  greater  damages  for  its 
conversion,  from  one  having  a  right  thereto  su- 
perior to  his,  after  his  lien  is  discharged,  than 
the  amount  secured  by  the  lien,  and  the  compen- 
sation allowed  by  section  3336  for  loss  of  time  and 
expenses. 

Damage  for  conversion  of  personalty,  generally: 
Sec.  3336. 

Levy  on  mortgaged  chattel:  See  as  to  duty  of 
officer,  sec.  2969.  ante. 

§  3339.  The  damages  for  seduction  rest  in  the 
sound  discretion  of  the  jury. 

Seduction,  action  by  unmarried  female:  Code 
Civ.  Proc.  sec.  374. 

Seduction,  actions  by  parent  or  guardian:  Code 
Civ.  Proc  sec.  375. 

§  3340.  For  Avrongful  injuries  to  animals  being 
subjects  of  property,  committed  willfully  or  by 
gross  negligence,  in  disregard  or  humanity,  exem- 
plary damages  may  be  given. 

Dogs  are  Property,  Penal  Code,  sec.  491;  Injury 
to.  Penal  Code,  sec.  597. 

Exemplary  damages,  generally:  See  sec.  3294. 

§  3341.  The  owner,  possessor,  or  harborer  of 
any  dog  or  other  animal  that  shall  kill,  worry,  or 
wound  any  sheep,  Angora  or  Cashmere  goats, 
shall  be  liable  to  the  owner  of  the  same  for  the 
damages  and  costs  of  suit,  to  be  reco'^ered  before 
any  court  of  competent  jurisdiction: 

1.  In  the  prosecution  of  actions  under  the 
provisions  of  this  chapter,  it  shall  not  be  necessary 
for  the  plaintiff  to  show  that  the  owner,  possessor. 


661  COMPENSATORY    RELIEF.  §§  3344-3345 

or  harborer  of  such  dog  or  other  animal  had 
knowledge  of  the  fact  that  such  dog  or  other  ani- 
mal Tvould  kill  or  wound  sheep  or  goats. 

2.  Any  person  on  finding  any  dog  or  dogs  not 
on  the  premises  of  its  owner  or  possessor  worry- 
ing, wounding,  or  killing  any  sheep,  Angora,  or 
Cashmere  goats,  may,  at  the  time  of  so  finding 
said  dog  or  dogs,  kill  the  same,  and  the  owner 
or  owners  thereof  shall  sustain  no  action  for  dam- 
ages against  any  person  so  li:illing  such  dog  or 
dogs.  [New  section  approved  March  13,  1883; 
Stats.  1883,  p.  283.    Approved  March  13,  1883.] 


ARTICLE  III. 

PENAL  DAMAGES. 

§  3344.  Failure   to  quit,   after  notice. 

§  3345.  Tenant  willfully  holding  over. 

§  3346.  Injuries  to  trees,   fcc. 

§  3347.  Injuries  inflicted  iu  a  duel. 

5  3348.  Same. 

§  3344.  If  any  tenant  give  notice  of  his  inten- 
tion to  quit  the  premises,  and  does  not  deliver  up 
the  possession  at  the  time  specified  in  the  no- 
tice, he  must  pay  to  the  landlord  treble  rent  dur- 
ing the  time  he  continues  in  possession  after  such 
notice. 

Service  of  notice:  Code  Civ.  Proc,  sec.  1162. 

§  3345.  If  any  tenant,  or  any  person  in  collu- 
sion Avith  the  tenant,  holds  over  any  lands  or  ten- 
ements after  demand  made  and  one  month's  no- 
tice, in  writing  given,  requiring  the  possession 
thereof,  such  person  holding  over  must  pay  to  the 
landlord  treble  rent  during  the  time  he  continues 
in  possession  after  such  notice. 

Damages  for  unlawful  detainer:  See  Code  Civ. 
Proc,  sees.  1174  et  seq.;  Id.,  sec.  735. 

Civ.  Code— 56 


§§  3346-3348  COMPENSATORY    RELIEF.  662 

§  3346.  For  wrongful  injuries  to  timber,  trees, 
or  underwood  upon  the  land  of  another,  or  re- 
moval thereof,  the  measure  of  damages  is  three 
times  such  a  sum  as  would  compensate  for  the  ac- 
tual detriment,  except  where  the  trespass  was 
casual  and  involuntary,  or  committed  under  the 
belief  that  the  land  belonged  to  the  trespasser, 
or  where  the  wood  was  fallen  by  the  authority  of 
highway  officers  for  the  purposes  of  a  highway; 
in  which  cases  the  damages  are  a  sum  equal  to  the 
actual  detriment. 

Trespass  for  cutting  down  and  carrying  away 
trees:  See,  also,  sec.  735,  Code  Civ.  Proc. 

§  3347.  If  any  ilerson  slays  or  permanently 
disables  another  person  in  a  duel  in  this  State, 
tlie  slayer  must  provide  for  the  maintenance  of 
the  widow  or  wife  of  the  person  slain  or  perma- 
nently disabled,  and  for  the  minor  children,  in 
such  manner  and  at  such  cost,  either  by  aggre- 
gate compensation  in  damages  to  each,  or  by  a 
monthly,  quarterly,  or  annual  allowance,  to  be 
determined  by  the  court. 

Duels  and  Challenges:  See  Penal  Code,  sees.  225- 
232. 

Note.— Section  is  based  on  Stats.  1855,  p.  152. 
Article  20,  section  2.  of  our  State  constitution,  pro- 
hibits any  one  who  fights,  or  acts  as  second,  or 
knowingly  aids  or  assists  one  who  fights  a  duel 
or  sends  a  challenge  to  fight  a  duel,  from  holding 
any  office  of  profit  or  trust:  See,  also,  Pen.  Code, 
sees.  225.  232. 

§  3348.  If  any  person  slays  or  permanently 
disables  another  person  in  a  duel  in  this  State,  the 
slayer  is  liable  for  and  must  pay  all  debts  of  the 
person  slain  or  permanently  disabled. 


663  COMPENSATORY    RELIEF.  §§  3353-3355 

ARTICLE  IV. 

GENERAL    PROVISIONS. 

§  3353.  Value,  how  estimated  in  favor  of  seller. 

§  3354.  Value,   how  estimated   in  favor  of  buyer. 

§  3355.  Property  of  peculiar  value. 

§  3356.  Value  of  thing  in  action. 

§  3357.  Damages     allowed    in     this     chapter,    exclusive     of 

others. 

§  3358.  Limitation   of   damages. 

§  3359.  Damages  to  be  reasonable. 

§  3360.  Nominal   damages. 

§  3353.  In  estimating  damages,  the  value  of 
property  to  a  seller  thereof  is  deemed  to  be  the 
price  Tvbich  he  could  have  obtained  therefor  in 
the  market  nearest  to  the  place  at  which  it  should 
have  been  accepted  by  the  buyer,  and  at  such 
time  after  the  breach  of  the  contract  as  would 
hare  sufficed,  with  reasonable  diligence,  for  the 
seller  to  effect  a  resale. 

§  3354.  In  estimating  damages,  except  as  pro- 
vided by  sections  3355  and  33.56,  the  value  of  prop- 
erty, to  a  buyer  or  owner  thereof,  deprived  of  its 
possession,  is  deemed  to  be  the  price  at  which  he 
might  have  bought  an  equivalent  thing  in  the 
market  nearest  to  the  place  where  the  property 
ought  to  have  been  put  into  his  possession,  and  at 
such  time  after  the  breach  of  duty  upon  which 
his  right  to  damages  is  founded  as  would  suffice, 
with  reasonable  diligence,  for  him  to  make  such  a 
purchase. 

§  3355.  Where  certain  property  has  a  peculiar 
value  to  a  person  recovering  damages  for  depriva- 
tiou  thereof,  or  injury  thereto,  that  may  be  deem- 
ed to  be  its  value  against  one  who  had  notice 
thereof  before  incurring  a  liability  to  damages  in 
respect  thereof,  or  against  a  willful  wrongdoer. 


§§  3356-3360  COMPENSATORY    RELIEF.  664 

§  3356.  For  the  purpose  of  estimating  dam- 
ages, tlie  value  of  an  instrument  in  writing  is  pre- 
sumed to  be  equal  to  that  of  the  property  to  which 
it  entitles  its  owner.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  p.  266.  In 
effect  July  1,  1874.] 

§  3357.  The  damages  prescribed  by  this  chap- 
ter are  exclusive  of  exemplary  damages  and  in- 
terest, except  where  those  are  expressly  men- 
tioned. 

Exemplary  damages:  See  sec.  3294.— Interest, 
see  sees.  3287-3290. 

§  3358.  Notwithstanding  the  provisions  of  this 
chapter,  no  person  can  recover  a  greater  amount 
in  damages  for  the  breach  of  an  obligation  than 
he  could  have  gained  by  the  full  performance 
thereof  on  both  sides,  except  in  the  cases  specified 
in  the  articles  on  Exemplary  Damages  and  Penal 
Damages,  and  in  sections  3319,  3339,  and  3340. 

Exemplary  damages:    Sec.  3294. 

Penal  damages:    Sees.    3344-3348. 


able,  and  where  an  obligation  of  any  kind  appears 
to  create  a  right  to  unconscionable  and  grossly 
oppressive  damages,  contrary  to  substantial  jus- 
tice, no  more  than  reasonable  damages  can  be 
recovered. 

Liquidated  damages  and  penalty:  See  sees.  1670, 
1671,  ante. 

§  3360.  When  a  breach  of  duty  has  caused  no 
appreciable  detriment  to  the  party  affected,  he 
may  yet  recover  nominal  damages. 


fi65    SPECIFIC   AND   PREVENTIVE   RELIEF.     §§  3336,  3367 

TITLE  III. 

SPECIFIC   AND    PREVENTIVE    RELIEF. 

Chapter  I.    General  PriDciples,  §§  33G6-3369. 
II.    Specific  Relief.  §§  3375-3414. 
III.    PreventiTe  Relief,  §§  3420-3423. 

CHAPTER  I. 

GENERAL  PRINCIPLES. 

§  3366.  Specific  relief,   &o.,  when  allowed. 

§  3367.  Specific    relief,    how   given. 

§  3368.  Preventive  relief,   how  given. 

§  33^69.  Not   to   enforce  penalty,    &c. 

§  3366.  Specific  or  preventive  relief  may  be 
given  in  the  cases  specified  in  this  title  and  in  no 
others. 

Possession  of  real  property:    Sees.  3375  et  seq. 

Possession  of  personal  property:  Sees.  3379  et 
sea. 

Specific  performance  of  obligations:  Sees.  3384 
et  seq. 

Revision  of  contracts:    Sees.  3399  et  seq. 

Rescission  of  contracts:    Sees.  3406  et  seq. 

Cancellation  of  instruments:    Sees.    3412  et  seq. 

Injunctions:    See  sees.  4320  et  seq. 

§  3367.    Specific  relief  is  given: 

1.  By  taking  possession  of  a  thing,  and  deliver- 
ing it  to  a  claimant; 

2.  By  compelling  a  party  himself  to  do  that 
which  ought  to  be  done;  or, 

3.  By  declaring  and  determining  the  rights  of 
parties,  otherwise  than  by  an  award  of  damages. 

Note.— What  is  knoAvn  as  the  specific-contract  act 
in  this  State  (embodied  in  section  667  [sec.  200], 
Code  Civ.  Proc.  Cal.^  has  given  rise  to  so  many 


§§  3:6S,  3369    SPECIFIC  AND  PREVENTIVE  RELIEF.        665 

actions  and  decisions  of  our  supreme  court  on  the 
subject  of  specific  relief,  wherein  the  Avhole  ques- 
tion is  discussed,  that  it  is  unnecessary  to  refer  to 
other  authorities:  See  sees,  1083-1097,  writ  of 
mandate.  Code  Civ.  Proc;  see  also  titles  "Lien," 
"Contesting-  Elections,"  "Discharge  of  Persons 
Imprisoned  on  Civil  Process,"  "Forcible  Entry  and 
Detainer,"  "Proceedings  Supplementary  to  Execu- 
tion," etc..  Code  Civ.  Proc.  Cal. 

See  sees.  3375  et  seq.,  for  classification  of  the 
instances  in  which  specific  relief  is  given. 

§  3368.  Preventive  relief  is  given  by  prohibit- 
ing a  party  from  doing  that  which  ought  not  to  be 
done. 

Injunction:    See  sees.  525-533,  Code  Civ.  Proc. , 

I'rohlbition:   See  sees.  1102-1105,  Code  Civ.  Proc. 

Preventive  relief  generally:  See  sec.  3420,  et  seq. 
post.  AYhile  sec.  3420  says  that  "preventive  relief 
is  granted  by  injunction,  provisional  or  final,"  the 
Code  Commissioners  say,  citing  that  section,  that 
"the  Code  of  Civil  Procedure  provides  other  reme- 
dies," and  refers  to  writs  of  prohibition,  certiorari, 
and  proceedings  for  contempt. 

Certiorari:   See  sec.  1072,  Code  Civ.  Proc. 

Contempt:   See  sees.  1209-1222,  Code  Civ.  Proc. 

§  3369.  Neither  specific  nor  preventive  relief 
can  be  granted  to  enforce  a  penal  law,  except  in  a 
case  of  nuisance,  nor  to  enforce  a  penalty  or  for- 
feiture in  any  case. 


»J67        SPECIFIC  AND  PREVENTIVE  RELIEF.    §§  3375,  3379 

CHAPTER  11. 

SPECIFIC   RELIEF. 

Article  I.  Possession  of  Real  Property,   §  3375. 

II.  Possession   of   Personal   Property,    §§   3379-3380. 

III.  Specific  Performance  of  Obligations,  §§  3384-3395. 

IV.  Revision    of    Contracts,    §§    33&9-3402. 
V.  Rescission  of  Contracts,   §§  3403-3408. 

VI.     Cancellation  of  Instruments,  §§  3412-3414. 

ARTICLE   I. 

POSSESSION  OF  REAL  PROPERTY. 

§  3375.     Judgment  for  possession  or  title. 

§  3375.  A  person  entitled  to  specific  real  prop- 
erty, by  reason  eitlier  of  a  perfected  title  or  of  a 
claim  to  title  Ti'bich  ought  to  be  perfected,  may 
recover  the  same  in  the  manner  prescribed  by  the 
Code  of  Civil  Procedure,  either  by  a  judgment  for 
its  possession,  to  be  executed  by  the  sheriff,  or  by 
a  judgment  requiring  the  other  party  to  perfect 
the  title  and  to  deliver  possession  of  the  property. 

Actions  concerning  real  estate:  See  Code  Civ. 
Proc,  sees.  738-748. 

Writ  of  restitution:  See  Code  Civ.  Proc.  sec. 
0.1)7. 

Specific  enforcement  of  contract  to  convey 
realty:   See  sec.  3384. 


ARTICLE  II. 

POSSESSION   OF  PERSONAL   PROPERTY. 

§  3379.    Judgment  for  delivery. 

§  3380.    When  holder  may  be  compelled  to  deliver. 

§  3379.    A  person  entitled  to  the  immediate  pos- 
session of  specific  personal  property  may  recover 


§§  3380,  3384    SPECIFIC  AND  PREVENTIVE  RELIEF.        668 

the  same  in  the  manner  provided  by  the  Code  of 
Civil  Procedure. 

Claim  and  delivery:  Code  Civ.  Proc,  sees.  509- 
520. 

Breach  of  agreement  to  transfer  personalty  may 
be  compensated  in  damages:    See  sec.  3387. 

§  3380.  Any  person  having  the  possession  or 
control  of  a  particular  article  of  personal  property, 
of  which  he  is  not  the  owner,  may  be  compelled 
specifically  to  deliver  it  to  the  person  entitled  to 
its  immediate  possession.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  266.  In  effect 
July  1.  1874.] 

Breach  of  agreement  to  transfer  personalty:  See 
sec.  3387. 


ARTICLE  III. 

SPECIFIC   PERFORMANCE   OF   OBLIGATIONS. 

§  3384.    In  what  cases  compelled. 

§  3385.     Remedy   mutual.     (Repealed.) 

§  3386.     No   remedy   unless   mutual. 

§  3387.     Distinction  between  real   and   personal  property. 

§  3388.  Contract  signed  by  one  party  only  may  be  enforced 
by  other. 

§  3389.  Liquidation  of  damages  not  a  bar  to  specific  per- 
formance. 

§  3390.    What   cannot   be   specifically  enforced. 

§  3391.    What  parties  cannot  be  compelled  to  perform. 

§  3392.  What  parties  cannot  have  specific  performance  in 
their  favor. 

§  3393.  Specific  performance  not  required  when  oppressive. 
(Repealed.) 

§  3394.    Agreement  to  sell  property  by  one  who  has  no  title. 

§  3395.  Relief  against  parties  claiming  under  person  bound 
to    perform. 

§  3384.  Except  as  otherwise  provided  in  this 
article,  specific  performance  of  an  obligation  may 
be  compelled.  [Amendment  approved  March  30, 
1874;  Amendments  1873-4,  266.  In  effect  July  1, 
1874.] 


669        SPECIFIC  AND  PREVENTIVE  RELIEF.     §§  3385-3390 

See  sec.  3390,  subd.  6,  and  sec.  3392,  post. 
Specifically  enforcing  revised  contract:    See  sec. 
3402. 

§  3385.     [Repealed.    In  effect  .July  1,  1874.] 

§  3386.  Neither  party  to  an  obligation  can  be 
compelled  specifically  to  perform  it,  unless  the 
other  party  thereto  has  performed,  or  is  compel- 
lable specifically  to  perform,  everything  to  which 
the  former  is  entitled  under  the  same  obligation, 
either  completely  or  nearly  so,  together  with  full 
compensation  for  any  want  of  entire  performance. 

Performance  by  parties  seeliing  execution:  Com- 
pare also  with  sec.  3302. 

§  3387.  It  is  to  be  presumed  that  the  breach 
of  an  agreement  to  transfer  real  property  cannot 
be  adequately  relieved  by  pecuniary  compensation, 
and  that  the  breach  of  an  agreement  to  transfer 
personal  property  can  be  thus  relieved. 

§  3388.  A  party  who  has  signed  a  written  con- 
tract may  be  compelled  specifically  to  perform  it, 
though  the  other  party  has  not  signed  it,  if  the 
latter  has  performed,  or  offers  to  perform  it  on 
his  part,  and  the  case  is  otherwise  proper  for  en- 
forcing specific  performance. 

§  3389.  A  contract  otherwise  proper  to  be  spe- 
cifically enforced  may  be  thus  enforced,  though 
a  penalty  is  imposed,  or  the  damages  are  liqui- 
dated for  its  breach,  and  the  party  in  default  is 
willing  to  pay  the  same. 

§  3390.  The  following  obligations  cannot  be 
specifically  enforced : 

1.  An  obligation  to  render  personal  service; 

2.  An  obligation  to  employ  another  in  personal 
service; 


§§  3391,  3392    SPECIFIC  AND  PREVENTIVE  RELIEF.        b70 

3.  An  agreement  to  submit  a  controversy  to  ar- 
bitration; 

4.  An  agreement  to  perform  an  act  which  the 
party  has  not  power  lawfully  to  perform  when 
required  to  do  so; 

5.  An  agreement  to  procure  the  act  or  consent 
of  the  wife  of  the  contracting  party,  or  of  any 
other  third  person;  or, 

6.  An  agreement,  the  terms  of  which  are  not 
sufficiently  certain  to  make  the  precise  act  which 
is  to  be  done  clearly  ascertainable. 

§  3391.  Specific  performance  cannot  be  en- 
forced against  a  party  to  a  contract  in  any  of  the 
following  cases: 

1.  If  he  has  not  received  an  adequate  consider- 
ation for  the  contract; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable; 

3.  If  his  assent  was  obtained  by  the  misrepre- 
sentation, concealment,  circumvention,  or  unfair 
practices  of  any  party  to  whom  performance 
would  become  due  under  the  contract,  or  by  any 
promise  of  such  party  which  has  not  been  substan- 
tially fulfilled;  or. 

4.  If  his  assent  was  given  under  the  influence 
of  mistake,  misapprehension,  or  surprise,  except 
that  where  the  contract  provides  for  compensa- 
tion in  case  of  mistake,  a  mistake  within  the  scope 
of  such  provision  may  be  compensated  for,  and  the 
contract  specifically  enforced  in  other  respects,  if 
proper  to  be  so  enforced. 

§  3392.  Specific  performance  cannot  be  en- 
forced in  favor  of  a  party  who  has  not  fully  and 
fairly  performed  all  the  conditions  precedent  on 
his  part  to  the  obligation  of  the  other  party,  ex- 
cept where  his  failure  to  perform  is  only  partial, 
and  either  entirely  immaterial  or  capable  of  being 
fully  compensated,  in  which  case  specific  perform- 


671        SPECIFIC  AND  PREVENTIVE  RELIEF.     §§  3393-339» 

auce  may  be  compelled,   upou  full  compensation 
being  made  for  the  default. 

§  3393.  [Kepealed  March  30,  1874;  Amend- 
ments 1S73-4,  2G7.     In  effect  July  1,  1874.] 

§  3394.  An  agreement  for  tke  sale  of  property 
cannot  be  specifically  enforced  in  favor  of  a  seller 
who  cannot  give  to  the  buyer  a  title  free  from  rea- 
sonable doubt. 

§  3395.  Whenever  an  obligation  in  respect  to 
real  property  would  be  specifically  enforced 
against  a  particular  person,  it  may  be  in  lilie  man- 
ner enforced  against  any  other  person  claiming 
under  him  by  a  title  created  subsequently  to  the 
obligation,  except  a  purchaser  or  encumbrancer  in 
good  faith  and  for  value,  and  except,  also,  that 
any  such  person  may  exonerate  himself  by  con- 
veying all  his  estate  to  the  person  entitled  to  en- 
force the  obligation. 

■J 

ARTICLE  IV. 

REVISION  OF  CONTRACTS. 

§  3399.  When   contract  may  be  revised. 

§  3400.  Presumption  as  to  intent  of  parties. 

§  3401.  Principles  of  revision. 

§  3402.  Enforcement  of  revised  contract. 

§  3399.  When,  through  fraud  or  a  mutual  mis- 
take of  the  parties,  or  a  mistake  of  one  party, 
which  the  other  at  the  time  knew  or  suspected,  a 
written  contract  does  not  truly  express  the  inten- 
tion of  the  parties,  it  may  be  revised  on  the  ap- 
plication of  a  party  aggrieved,  so  as  to  express 
that  intention,  so  far  as  it  can  be  done  without 
prejudice  to  rights  acquired  by  third  persons,  in 
good  faith  and  for  value. 

Revised  to  express  intention:     See  sec.  3401. 


§§  3400-3403    SPECIFIC  AND  PREVENTIVE  RELIEF.        672 

§  3400.  For  the  purpose  of  revising  a  contract, 
it  must  be  presumed  that  all  the  parties  thereto 
intended  to  make  an  equitable  and  conscientious 
agreement. 

§  3401.  In  revising  a  written  instrument,  the 
court  may  inquire  What  the  instrument  was  in- 
tended to  mean,  and  what  were  intended  to  be 
its  legal  consequences,  and  is  not  confined  to  the 
inquiry  what  the  language  of  the  instrument  was 
intended  to  be. 

§  3402.  A  contract  may  be  first  revised  and 
then  specifically  enforced. 

ARTICLE  V. 

RESCISSION    OP   CONTRACTS. 

§  3406.    When  rescission  may  be  adjudged. 

§  3407.     Rescission    for   mistake. 

§  3408.    Court   may   require   party  rescinding   to   do  equity. 

§  3406.  The  rescission  of  a  written  contract 
may  be  adjudged,  on  the  application  of  a  party 
aggrieved : 

1.  In  any  of  the  cases  mentioned  in  section 
1689;  or. 

2.  Where  the  contract  is  unlawful,  for  causes 
not  apparent  upon  its  face,  and  the  parties  were 
not  equally  in  fault;  or, 

3.  When  the  public  interest  will  be  prejudiced 
by  permitting  it  to  stand. 

Rescission  of  contracts  by  party  thereto:  Sec. 
1689.  ante. 

Rescission  against  consent,  how  effected:  Sec. 
1601,  ante. 

Cancellation  of  instruments:     See  sees.  3412  et 

SGQ- 

Rescission,  how  effected:  See  sec.  1691,  and 
note. 


673        SPECIFIC  AND  PREVENTIVE  RELIEF.     §§  3407-3413 

§  3407.  Rescission  cannot  be  adjudged  for 
mere  mistal^e,  unless  the  party  against  wliom  it  is 
adjudged  can  be  restored  to  substantially  the 
same  position  as  if  the  contract  had  not  been 
made. 

Restoring  party  in  statu  quo:   See  sec.  1691. 

§  3408.  On  adjudging  the  rescission  of  a  con- 
tract, the  court  may  require  the  party  to  whom 
such  relief  is  granted  to  make  any  compensation 
to  the  other  which  justice  may  require. 


ARTICLE  VI. 

CANCELLATION    OF   INSTRUMENTS. 

§  3412.    When  cancellation  may  be  ordered. 
§  3413.    Instrument  obviously  void. 
§  3414.    Cancellation  in  part. 

§  3412.  A  written  instrument,  in  respect  to 
which  there  is  a  reasonable  apprehension  that  if 
left  outstanding  it  may  cause  serious  injury  to  a 
person  against  whom  it  is  void  or  voidable,  may, 
upon  his  application,  be  so  adjudged,  and  ordered 
to  be  delivered  up  or  cancelled. 

Rescission  of  contracts:  See  ante,  sees.  3406  et 
sen. 

Removing  cloud  on  title:  See  sec.  738,  Code  Civ. 
Proc. 

Cancellation  and  alteration  of  instruments  by 
parties  thereto:    See  sees.  1607  et  seq. 

§  3413.  An  instrument,  the  invalidity  of  which 
is  apparent  upon  its  face,  or  upon  the  face  of  an- 
other instrument  which  is  necessary  to  the  use  of 
the  former  in  evidence,  is  not  to  be  deemed  capa- 
ble of  causing  injury,  within  the  provisions  of  the 
last  section. 

Civ.    Code— 57 


§§  3414-3423     SPECIFIC  AND  PREVENTIVE  RELIEF.        674 

§  3414.  Where  an  instrument  is  evidence  of 
different  riglits  or  obligations,  it  may  be  cancelled 
in  part,  and  allowed  to  stand  for  the  residue. 


CHAPTER  III. 

PREVENTIVE  RELIEF. 

§  3420.  Preventive   relief,    how   granted. 

§  3421.  Provisional   injunctions. 

§  3422.  Injunction,    when   allowed.  . 

§  3423.  Injunction,  when  not  allowed. 

§  3420.  Preventive  relief  is  granted  by  injunc- 
tion, provisional  or  final. 

Proceedings  in  other  courts:    See  sec.  3423. 

Mortgage.— Injunction  to  restrain  party  in  pos- 
session from  waste  during  foreclosure  suit:  Sec. 
745,  Code  Civ.  Proc. 

Code  Civ.  Proc,  sec.  731  et  seq.,  and  sec.  3493. 

§  3421.  Provisional  injunctions  are  regulated 
by  the  Code  of  Civil  Procedure.     [§§  525-533.] 

§  3422.  Except  where  otherwise  provided  by 
this  title,  a  final  injunction  may  be  granted  to  pre- 
vent the  breach  of  an  obligation  existing  in  favor 
of  the  applicant; 

1.  Where  pecuniary  compensation  would  not  af- 
ford adequate  relief; 

2.  Where  it  would  be  extremely  difficult  to  as- 
certain the  amount  of  compensation  which  would 
afford  adequate  relief; 

3.  A^'here  the  restraint  is  necessary  to  prevent  a 
multiplicity  of  judicial  proceedings;  or, 

4.  "S^'here  the  obligation  arises  from  a  trust. 

Injunction  generally:   See  sec.  3420. 

§  3423.    An  injunction  cannot  be  granted: 
1.    To  stay  a  judicial  proceeding  pending  at  the 
commencement  of  the  action  in  which  the  injunc- 


675        SPECIFIC  AND  PREVENTIVE  RELIEF^.  §  3428 

tion  is  demanded,  unless  such  restraint  is  neces- 
sary to  prevent  a  multiplicity  of  such  proceed- 
ings; 

2.  To  stay  proceedings  in  a  court  of  the  United 
SUtes; 

3.  To  stay  proceedings  in  another  State  upon  a 
judgment  of  a  court  of  that  State; 

4.  To  prevent  the  execution  of  a  public  statute 
by  officers  of  the  law,  for  the  public  benefit; 

f).  To  prevent  the  breach  of  a  contract,  the  per- 
formance of  which  would  not  be  specifically  en- 
forced ; 

6.  To  prevent  the  exercise  of  a  public  or  private 
office,  in  a  lawful  manner,  by  the  person  in  pos- 
session; 

7.  To  prevent  a  legislative  act  by  a  municipal 
corporation.  [Amendment  approved  March  30, 
1874;  Amendments  1878-4,  267.  In  effect  July  1, 
1874.] 


PART   11. 


SPECIAL     RELATIONS     OF     DEBTOR     AND 
CREDITOR. 

Title  I.    General  Principles,  §§  3420-3433. 

II.    Fraudulent    Instruments  and    Transfers, 
§§  3439-3442. 
III.    Assignments   for  the   Benefit   of   Credit- 
ors";  §§  3449-3473. 


TITLE  I. 

GENERAL    PRINCIPLES. 

§  3429.  Who  is  a  debtor. 

§  3430.  Who    is    a   creditor. 

§  3431.  Contracts  of  debtor  are  valid. 

§  3432,  Payments   in   preference. 

§  3433.  Relative   rights   of   different   creditors. 

§  3429.  A  debtor,  within  the  meaning  of  this 
title,  is  one  who,  by  reason  of  an  existing  obliga- 
tion, is  or  may  become  liable  to  pay  money  to  an- 
other, whether  such  liability  is  certain  or  contin- 
gent. 

§  3430.  A  creditor,  within  the  meaning  of  this 
title,  is  one  in  whose  favor  an  obligation  exists, 
by  reason  of  which  he  is,  or  may  become,  entitled 
to  the  payment  of  money. 

§  3431.  In  the  absence  of  fraud,  every  contract 
of  a  debtor  is  valid  against  all  his  creditors,  exist- 


677         FRAUDULENT  INSTRUMENTS,  ETC.       §§  3432-3439 

ing  or  subsequent,  who  have  not  acquired  a  lien 
on  the  property  affected  by  such  contract. 

§  3432.  A  debtor  may  pay  one  creditor  in  pref- 
erence to  another,  or  may  give  to  one  creditor  se- 
curity for  the  payment  of  his  demand  in  prefer- 
ence to  another. 

Assign  preferring  creditor:  See  sec.  3457,  subd.  1. 

§  3433.  Where  a  creditor  is  entitled  to  resort  to 
each  of  several  funds  for  the  satisfaction  of  his 
claim,  and  another  person  has  an  interest  in,, 
or  is  entitled  as  a  creditor  to  resort  to  some,  but 
not  all  of  them,  the  latter  may  require  the  former 
to  seeli  satisfaction  from  those  funds  to  which  the 
latter  has  no  such  claim,  so  far  as  it  can  be  done 
without  impairing  the  right  of  the  former  to  com- 
plete satisfaction,  and  without  doing  injustice  to 
third  persons. 

TITLE  II. 

FRAUDULENT    INSTRUMENTS   AND    TRANSFERS. 

§  3439.  Transfers,  &c.,  with  intent  to  defraud  creditors. 

§  3440.  Certain  transfers  presumed  fraudulent. 

§  3441.  Creditor's   right  must  be   judicially  ascertained. 

§  3442.  Question  of  fraud,  how  determined. 

§  3439.  Every  transfer  of  property  or  charge 
thereon  made,  every  obligation  incurred,  and  every 
judicial  proceeding  tal^en,  with  intent  to  delay  or 
defraud  any  creditor  or  other  person  of  his  de- 
mands, is  void  against  all  creditors  of  the  debtor, 
and  their  successors  in  interest,  and  against  any 
person  upon  whom  the  estate  of  the  debtor  de- 
volves in  trust  for  the  benefit  of  others  than  the 
debtor. 

Arrest:   See  Code  Civ.  Proc,  sec.  479. 

Fraudulent  conveyance:  See  Penal  Code,  sees. 
154,  531. 


§§  3-140-3441  FRAUDULENT   INSTRUMENTS.    ETC.  678 

§  3440.  Everj'^  transfer  of  personal  property, 
other  than  a  thing  in  action,  or  a  ship  or  cargo 
at  sea  or  in  a  foreign  port,  and  every  lien  thereon, 
other  than  a  mortgage,  when  allowed  by  law,  and 
a  contract  of  bottomry  or  respondentia,  is  conclu- 
sively presumed,  if  made  by  a  person  having  at 
the  time  the  possession  or  control  of  the  property, 
and  not  accompanied  by  an  immediate  delivery, 
and  followed  by  an  actual  and  continued  change 
of  possession  of  the  things  transferred,  to  be 
fraudulent,  and  therefore  void,  against  those  who 
are  his  creditors  while  he  remains  in  possession, 
and  the  successors  in  interest  of  such  creditors, 
and  against  any  persons  on  whom  his  estate  de- 
volves in  trust  for  the  benefit  of  others  than  him- 
self, and  against  purchasers  or  encumbrancers  in 
good  faith  subsequent  to  the  transfer;  provided, 
however,  that  the  provisions  of  this  section  shall 
not  apply  to  the  transfers  of  wines  in  the  wineries 
or  wine  cellars  of  the  makers  or  owners  thereof, 
or  other  persons  having  possession,  care,  and 
control  of  the  same,  and  the  pipes,  caslis,  and 
tanks  in  which  the  said  wines  are  contained, 
which  transfers  shall  be  made  in  writing,  and  cer- 
tified and  acknowledged  and  verified  in  the  same 
form  as  provided  for  chattel  mortgages  and  which 
shall  be  recorded  in  the  book  of  miscellaneous 
records  in  the  office  of  the  county  recorder  of  the 
county  in  which  the  same  are  situated.  [Amend- 
ment approved  March  12,  1895;  Stats.  1895,  43.  In 
effect  in  sixty  days.] 

Chattel  mortgage. — Change  of  possession  not 
necessary;  it  must  be  recorded:    Sec.  2959,  ante. 

Chattel  mortgage,  when  void  as  to  creditors  and 
purchasers:    Sec.  2957. 

§  3441.  A  creditor  can  avoid  the  act  or  obliga- 
tion of  his  debtor  for  fraud  only  where  the  fraud 
obstructs  the  enforcement,  by  legal  process,  of  his 


J 


€79  FRAUDULENT   INSTRUMENTS,    ETC.  §  3442 

right  to  take  the  property  affected  l)y  the  transfer 
or  obligation, 

§  3442.  In  all  eases  arising  under  section 
twelve  hundred  and  twenty-seven,  or  under  the 
provisions  of  this  title,  except  as  otherwise  pro- 
vided in  section  thirty-four  hundred  and  forty, 
the  question  of  fraudulent  intent  is  one  of  fact 
and  not  of  law;  nor  can  any  transfer  or  charge  be 
adjudged  fraudulent  solely  on  the  ground  that 
it  was  not  made  for  a  valuable  consideration;  pro- 
vided, however,  that  any  transfer  or  incumbrance 
of  property-  made  or  given  voluntarily,  or  without 
a  valuable  consideration,  by  a  party  while  insol- 
vent or  in  contemplation  of  insolvency,  shall  be 
fraudulent,  and  void  as  to  existing  creditors. 
[Amendment  approved  March  26,  1895;  Stats. 
1895,  115.     In  effect  in  sixty  days.] 


§3449  ASSIGNMENTS.  6S0 

TITLE  III. 

ASSIGNMENTS  FOR  THE  BENEFIT  OP  CREDITORS. 

S  3449.  When  debtor  may  execute  assignment. 

§  3450.  Insolvency,  what. 

§  3451.  Certain  transfers  not  affected. 

§  3452.  What   debts   may   be   secured. 

§  3453.  What  preferences  may  be  given.     (Repealed.) 

§  3454.  Preference  must  be  absolute.     (Repealed.) 

§  3455.  Certain  rights  not  affected  by  preferences  in  assign- 
ment.    (Repealed.) 

§  3456.  Joint  and  separate  debts.     (Repealed.) 

§  3457.  Assignment,  when  void. 

§  3458.  The  instrument  of  assignment. 

§  3459.  Compliance  with  provisions  of  last  section  necessary 
to  validity  of  assignment. 

§  3460.  Assignee  takes,   subject  to  rights  of  third  parties. 

§  3461.  Inventory  required. 

§  3462.  Verification  of  inventory. 

§  3463.  Recording  assignment  and  filing  inventory. 

§  3464.  Same. 

§  3465.  Effect  of  omitting  to  record. 

§  3466.  Assignment  of  real  property. 

§  3467.  Bond  of  assignees. 

§  3468.  Conditions  of  disposal  and  conversion. 

§  3439.  Accountings. 

§  3470.  Property  exempt. 

§  3471.  Compensation. 

§  3472.  Assignees  protected  for  acts  done  in  good  faith. 

§  3473.  Assent  of  creditor  necessary  to  modification  of  as- 
signment. 

§  3449.  An  insolvent  debtor  may  in  good  faith 
execute  an  assignment  of  property  in  trust  for  the 
satisfaction  of  his  creditors,  in  conformity  to  the 
provisions  of  this  chapter;  subject,  however,  to 
the  provisions  of  this  Code  relative  to  trusts  and 
fraudulent  transfers,  and  to  the  restrictions  im- 
posed by  law  upon  assignments  by  special  part- 
nerships, by  corporations,  or  by  other  specific 
classes  or  persons.  Every  such  assignment  shall 
contain  a  list  of  the  names  of  the  creditors  of  the 
assignor,  and  their  places  of  residence  and 
amounts  of  their  respective  demands,  and  the 
amounts  and  nature  of  any  security  therefor,  and 


681  ASSIGNMENTS.  §  3449 

shall,  subject  to  the  other  provisions  of  this  sec- 
tion, be  made  to  the  sheriff  of  the  county,  or  city 
and  county,  wherein  the  assi;;,^nor  resides,  if  the 
assignor  resides  within  this  State;  or  in  case  the 
assignor  resides  out  of  this  State,  then  to  the  sher- 
iff of  the  county,  or  city  and  county,  wherein  the 
property  assigned,  or  some  of  it,  is  situated;  but 
when  the  assignor  resides  out  of  the  State,  an  as- 
signment made  as  herein  provided  may,  by  its 
terms,  transfer  any  property  of  the  assignor  in 
this  State.  The  sheriff  shall  forthwith  take  pos- 
session of  all  the  property  so  assigned  to  him,  and 
keep  the  same  till  delivered  by  him,  as  herein- 
after provided.  When  the  assignment  has  been 
made,  as  herein  provided,  the  sheriff  shall  immedi- 
ately, by  mail,  notify  the  creditors  named  in  the 
assignment,  at  their  places  of  residence  as  given 
therein,  to  meet  at  his  office  on  a  day  and  hour 
to  be  appointed  by  him,  of  not  less  than  eight  nor 
more  than  ten  days  from  the  date  of  the  delivery 
of  the  assignment  to  him,  for  the  purpose  of  elect- 
ing one  or  more  assignees,  as  they  may  deter- 
mine, in  the  place  and  stead  of  the  said  sheriff  ic 
the  premises,  and  shall  also  publish  a  notice  oi 
such  meeting,  and  the  purpose  thereof,  at  least 
once  before  such  meeting,  in  some  newspaper  pub- 
lished in  his  county,  or  city  and  county.  The  no- 
tice so  to  be  mailed  shall  also  contain  a  statement 
of  the  amount  of  the  demand  of  the  creditor,  and 
the  amount  and  nature  of  any  security  therefor,  as 
set  forth  in  the  assignment;  and  if  any  creditor 
shall  not  find  the  amount  of  his  claim  to  be  cor- 
rectly so  stated,  he  may  file  with  said  sheriff, 
at  or  before  such  meeting,  a  statement,  under 
oath,  of  his  demand,  and  such  statement  shall, 
for  the  purpose  of  voting  as  hereinafter  provided, 
be  accepted  by  said  sheriff  as  correct;  and  when 
no  such  statement  is  filed,  the  statement  of 
amount  as  set  forth  in  the  assignment  shall  be 


§  3449  ASSIGNMENTS,  682 

accepted  by  the  sheriff  as  correct.  No  creditor 
having  a  mortgage  or  pledge  of  real  or  personal 
property  of  the  debtor,  or  lien  thereon,  for  secur- 
ing the  payment  of  a  debt  owing  to  him  from  the 
debtor,  shall  be  allowed  to  vote  any  part  of  his 
claim  at  snch  meeting  of  creditors,  unless  he  shall 
have  first  conveyed,  released,  or  delivered  up  his 
said  security  to  said  sheriff,  for  the  benefit  of  all 
creditors  of  said  assignor.  At  such  meeting  the 
sheriff  shall  preside,  and  a  majority  in  amount  of 
demands  present  or  represented  by  proxy  shall 
control  all  questions  and  decisions.  The  creditors 
may  adjourn  such  meeting  from  time  to  time,  and 
may  vote  on  all  questions  either  in  person  or  by 
proxy  signed  and  acl^nowledged  before  any  oflicer 
authorized  to  take  acknowledgments,  and  filed 
with  the  sheriff.  At  such  a  meeting,  or  any  ad- 
journment thereof,  the  creditors  may  elect  one  or 
more  assignees  from  their  own  number,  in  the 
place  and  stead  of  the  sheriff,  and  the  person  or 
persons  so  elected  shall  afterwards  be  the  as- 
signee or  assignees  under  the  provisions  of 
this  title;  and  the  sheriff,  by  transfer  in 
writing,  acknowledged  as  required  by  sec- 
tion three  thousand  four  hundred  and  fifty- 
eight,  shall  at  once  assign  to  such  elected 
assignee  or  assignees,  upon  the  trusts  in  this  title 
provided,  all  the  property  so  assigned  to  him,  and 
deliver  possession  thereof.  All  recitals  in  such 
assignment  by  said  sheriff  of  notices  of  such  meet- 
ing, and  the  holding  thereof,  and  of  the  due  elec- 
tion of  such  assignee  or  assignees,  shall  be  prima 
facie  proof  of  the  facts  recited.  The  sheriff  shall, 
before  the  delivery  of  such  assignment,  be  paid 
the  expenses  inciu'red  by  him,  and  fees  in  such 
amount  as  would  by  law  be  collectible  if  the  prop- 
erty assigned  had  been  levied  upon  and  safely 
kept  under  attachment.  Thereupon,  and  after  the 
record  of  such  last  named  assignment,  as  in  this 


683  ASSIGNMENTS.  §§  3450-345S 

title  provided,  such  elected  assignee  or  assignees 
shall  take,  and  hold,  and  dispose  of  all  such  prop- 
erty and  its  proceeds,  upon  the  trusts  and  condi- 
tions and  for  the  purposes  in  this  title  provided. 
[Amendment  approved  March  26,  1895;  Stats. 
1895.  62.    In  effect  in  sixty  days.] 

See  sec.  2430,  subd.  1,  ante;  sec.  3473,  post. 

Insolvency  act:  See  Code  Civ.  Proc,  Appendix, 
pp.  817  et  seq. 

§  3450.  A  debtor  is  insolvent,  within  the  mean- 
ing of  this  title,  when  he  is  unable  to  pay  his 
debts  from  his  own  means  as  they  become  due. 

§  3451.  The  provisions  of  this  title  do  not  pre- 
vent a  person  residing  in  another  State  or  coun- 
try from  making  there,  in  good  faith,  and  without 
intent  to  evade  the  laws  of  this  State,  a  transfer 
of  property  situated  within  it;  but  such  person 
cannot  make  a  general  assignment  of  property 
situated  in  this  State  for  the  satisfaction  of  all  his 
creditors,  except  as  in  this  title  provided;  nor  da 
the  provisions  of  this  title  atfect  the  power  of  a 
person,  although  insolvent,  and  whether  residing 
within  or  without  this  State,  to  transfer  property 
in  this  State,  in  good  faith,  to  a  particular  credit- 
or, for  the  purpose  of  paying  or  securing  the  whole 
or  a  part  of  a  debt  owing  to  such  creditor,  wheth- 
er in  his  own  right  or  otherwise.  [Amendment 
approved  March  7,  1889;  Stats.  1889,  82.  In  ef- 
fect March  7,  1889.] 

§  3452.  An  assignment  for  the  benefit  of  credit- 
ors may  provide  for  any  subsisting  liability  of  the 
assignor  which  he  might  lawfully  pay,  whether 
absolute  or  contingent. 

§  3453.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  267.     In  effect  July  1,  1874.] 


§§  3454-3458  ASSIGNMENTS.  684 

§  3454.  [Kepealed  March  30,  1874;  Ameno 
ments  1873-4,  267.     In  effect  July  1,  1874.] 

§  3455.  [Kepealed  March  30,  1874;  Amend- 
ments 1873-4,  267.     In  effect  July  1,  1874.] 

§  3456.  [Repealed  March  30,  1874;  Amend- 
ments 1873-4,  267.     In  effect  July  1,  1874.] 

§  3457.  An  assignment  for  the  benefit  of  credit- 
ors is  void  against  any  creditor  of  the  assignor 
not  assenting  thereto,  in  the  following  cases: 

1.  If  it  give  a  preference  of  one  debt  or  class  of 
debts  over  another; 

2.  If  it  tend  to  coerce  any  creditor  to  release 
or  compromise  his  demand; 

3.  If  it  provide  for  the  payment  of  any  claim 
known  to  the  assignor  to  be  false  or  fraudulent, 
or  for  the  payment  of  more  upon  any  claim  than 
is  linown  to  be  justly  due  from  the  assignor; 

4.  If  it  reserve  any  interest  in  the  assigned 
property,  or  in  any  part  thereof,  to  the  assignor, 
or  for  his  benefit  before  all  his  existing  debts  are 
paid; 

5.  If  it  confer  upon  the  assignee  any  power 
which,  if  exercised,  might  prevent  or  delay  the 
immediate  conversion  of  the  assigned  property  to 
the  purposes  of  the  trust; 

6.  If  it  exempt  him  from  liability  for  neglect  of 
duty  or  misconduct.  [Amendment  approved 
March  30,  1874;  Amendments  1873-4,  267.  In  ef- 
fect July  1,  1874.] 

Assignment,  when  void:  Subd.  1.  Preferences: 
See  sec.  3432.  Preferences  by  special  partnerships: 
See  sec.  2496. 

§  3458.  An  assignment  for  the  benefit  of  cred- 
itors must  be  in  writing,  subscribed  by  the  as- 
signor, or  by  his  agent  thereto  authorized  in  writ- 
ing, and  tlie  transfer  by  the  sheriff  must  also  be 
in  writing,  subscribed  by  the  sheriff  in  his  official 


i 


685  ASSIGNMENTS.  §§  3459-3461 

capacity.  Both  such  assignment  and  such  trans- 
fer must  be  aclinowledged,  or  proved  and  certified, 
in  the  mode  prescribed  by  the  chapter  on  record- 
ing transfers  of  real  property,  and  be  recorded  as 
required  by  sections  thirty-four  hundred  and  sixty- 
three  and  thirty-four  hundred  and  sixty-four;  but 
recording  in  one  county  constitutes  a  compliance 
with  the  following  section.  [Amendment  approved 
March  7,  1889;  Stats.  1889,  82.  In  effect  March  7, 
1889.] 

§  3459.  Unless  the  provisions  of  the  last  sec- 
tion are  complied  with,  an  assignment  for  the 
benefit  of  creditors  is  void  against  every  creditor 
of  the  assignor  not  assenting  thereto. 

§  3460.  An  assignee  for  the  benefit  of  creditors 
is  not  to  be  regarded  as  a  purchaser  for  value,  and 
has  no  greater  rights  than  his  assignor  had,  in 
respect  to  things  in  action  transferred  by  the 
assignment. 

§  3461.  Within  twenty  days  after  an  assign- 
ment is  made  for  the  benefit  of  creditors,  the  as- 
signor must  malie  and  file,  in  the  manner  prescrib- 
ed by  section  3463,  a  full  and  true  inventory, 
showing: 

1.  All  the  creditors  of  the  assignor; 

2.  The  place  of  residence  of  each  creditor,  if 
Ivnown  to  the  assignor;  or  if  not  known,  that  fact 
must  be  stated; 

-3.  The  sum  owing  to  each  creditor  and  the 
nature  of  each  debt  or  liability,  whether  arising 
on  written  security,  account,  or  otherwise; 

4.  The  true  consideration  of  the  liability  in  each 
case,  and  the  place  where  it  arose; 

5.  Every  existing  judgment,  mortgage,  or  other 
security  for  the  payment  of  any  debt  or  liability 
of  the  assignor; 

G.    All  property  of  the  assignor  at  the  date  of 

Civ.  Code— 58 


§  3462  ASSIGNMENTS.  686 

the   assignmeut,   which   is   exempt   by   law   from 
execution;  and, 

7.  All  of  the  assignor  s  property  at  the  date  of 
the  assignment,  both  real  and  personal,  of  every 
kind,  not  so  exempt  and  the  incumbrances  exist- 
ing thereon,  and  all  vouchers  and  securities  relat- 
ing thereto,  and  the  value  of  such  property  ac- 
cording to  the  best  linowledge  of  the  assignor. 

§  3462.  An  affidavit  must  be  made  by  every 
assignor  executing  an  assignment  for  the  benefit 
of  creditors,  to  be  annexed  to  and  filed  with  the 
inventory  mentioned  in  the  last  section,  to  the 
effect  that  the  same  is  in  all  respects  just  and 
true  according  to  the  best  of  such  assignor's 
Ivuowledge  and  belief.  If  the  assignor  neglects  or 
refuses  to  make  and  file  such  inventory  and  afli- 
davit  within  said  twenty  days,  the  assignment 
shall  not,  for  that  reason,  be  affected  in  any  way, 
but  in  that  event  the  assignee  or  assignees  elected 
by  the  creditors  shall  within  twenty  days  there- 
after make  and  tile,  in  the  office  of  the  County 
Recorder  where  the  assignment  is  first  recorded, 
a  verified  inventory  of  all  assets  received  by  them; 
and  such  assignee  or  assignees  may  at  any  time, 
or  from  time  to  time,  after  the  transfer  to  them 
by  the  sheriff,  by  petition  to  the  Superior  Court 
of  the  county,  or  city  and  county,  where  the  as- 
signment is  first  recorded,  cause  the  assignor,  by 
order  or  citation,  to  appear  before  said  court,  or 
a  commissioner  or  referee  to  be  appointed  by  .it, 
at  a  time  and  place  within  the  county,  or  city  and 
county,  to  be  designated  in  the  order  or  citation, 
to  be  examined  touching  the  matters  mentioned 
in  section  three  thousand  four  hundred  and  sixty- 
one,  and  any  other  matters  relative  to  the  as- 
signment, and  to  have  with  him  all  books  of  ac- 
count, vouchers,  and  papers  relating  to  the  as- 
signed property;  and  such  court  may  by  its  order 


687  ASSIGNMENTS.  §§  3463-3466 

require  the  surrender  to  such  assignee  or  assignees 
of  such  books,  vouchers,  and  papers,  to  be  by 
them  retained  until  their  trust  is  fully  completed 
and  performed.  [Amendment  approved  March  7, 
1889;  Stats.  1889,  82.     In  effect  March  7.  1889.1 

§  3463.  An  assignment  for  the  benefit  of  cred- 
itors must  be  recorded,  and  the  inventory  required 
by  section  34G1  filed  with  the  county  recorder  of 
the  county  in  which  the  assignor  resided  at  the 
date  of  the  assignment;  or,  if  he  did  not  then  re- 
side in  this  State,  with  the  recorder  of  the  county 
in  which  his  principal  place  of  business  was  then 
situated;  or  if  he  had  not  then  a  residence  or  place 
of  business  in  this  State,  with  the  recorder  of  the 
county  in  which  the  principal  part  of  the  assigned 
property  was  then  situated. 

§  3464.  If  an  assignment  for  the  benefit  of 
creditors  is  executed  by  more  than  one  assignor, 
it  may  be  recorded,  and  a  copy  of  the  inventory, 
required  by  section  3461,  may  be  filed  with  the  re- 
corder of  the  county  in  which  any  of  the  assignors 
resided  at  its  date,  or  in  which  any  of  them,  not 
then  residing  in  this  State,  had  then  a  place  of 
business. 

§  3465.  An  assignment  for  the  benefit  of  cred- 
itors is  void  against  creditors  of  the  assignor  and 
against  purchasers,  and  encumbrancers  in  good 
faith,  and  for  value,  unless  it  is  recorded  as  pro- 
vided in  this  title,  and  unless  either  the  inven- 
tory required  by  section  3461,  or  the  inventory  re- 
quired of  the  assignee  or  assignees  by  section  3462. 
is  filed  in  the  manner  provided  in  this  title  and 
within  the  time  designated.  [Amendment  ap- 
proved March  7,  1889;  Stats.  1889,  S3.  In  effect 
March  7,  1889.] 

§  3466.  Where  an  assignment  for  the  benefit 
of  creditors  embraces  real  property,  it  is  subject 


§§  3467,  3468  ASSIGNMENTS.  688 

to  the  provisions  of  Article  IV.  of  the  Chapter  on 
Eecording  Transfers,  as  well  as  to  those  of  this 
title.    [Sees.  1158-1217.] 

§  3467.  No  bond  shall  be  given  by  the  sheriff, 
but  he  shall  be  liable  on  his  official  bond  for  the 
care  and  custody  of  the  property  while  in  his 
possession.  Within  forty  days  after  date  of  the 
transfer  by  the  sheriff,  the  assignee  must  enter 
into  a  bond  to  the  people  of  this  State  in  such 
amount  as  may  be  fixed  by  a  judge  of  the  Superior 
Court  of  the  county,  or  city  and  county,  in  which 
an  inventory  in  accordance  with  the  provisions  of 
this  title  is  filed,  with  sufficient  sureties  to  be  ap- 
proved by  such  judge,  and  conditioned  for  the 
faithful  discharge  of  the  trust  and  the  due  ac- 
counting for  all  moneys  received  by  the  assignee, 
which  bond  must  be  filed  in  the  same  office  with 
the  inventory;  and  any  assignee  failing  to  comply 
with  the  provisions  of  this  section  may  be  re- 
moved by  the  above  named  Superior  Court  on  pe- 
tition of  the  assignor  or  any  creditor,  and  his 
successor  appointed  by  such  court.  [Amendment 
approved  March  7,  1889;  Stats.  1889,  83.  In  effect 
March  7.   1889.] 

§  3468,  Until  a  verified  inventory  has  been 
made  and  filed,  either  by  the  assignor  or  assignee, 
as  required  by  the  provisions  of  this  title,  and 
the  assignee  has  given  the  bond  required  by  the 
last  section,  such  assignee  has  no  authority  to 
dispose  of  the  property  of  the  estate,  or  any  part 
of  it  (except  in  the  case  of  perishable  property, 
which  in  his  discretion  he  may  dispose  of  at  any 
time,  and  receive  the  proceeds  of  sale  thereof); 
nor  has  he  power  to  convert  the  property,  or  the 
proceeds  of  any  sale  of  perishable  property,  to  the 
purposes  of  the  trust.  Within  ten  days  after  the 
filing  of  his  bond,  the  assignee  must  commence 


689  ASSIGNMENTS.  §  3468 

the  publication  (and  such  publication  shall  con- 
tinue at  least  once  a  weeli:  for  four  weelis),  in 
some  newspaper  published  in  the  county,  or  city 
and  county,  where  the  inventory  is  filed,  of  a  no- 
tice to  creditors  of  the  assignor,  stating  the  fact 
and  date  of  the  assignment,  and  requiring  all  per- 
sons having  claims  against  the  assignor  to  exhibit 
them,  with  the  necessary  vouchers,  and  verified 
by  the  oath  of  the  creditor,  to  the  assignee,  at  his 
place  of  residence  or  business,  to  be  specified  in 
the  notice;  and  he  shall  also,  within  ten  days  after 
the  first  publication  of  said  notice,  mail  a  copy  of 
such  notice  to  each  creditor  whose  name  is  given 
in  the  instrument  of  assignment,  at  the  address 
therein  given.  After  such  notice  is  given,  a  copy 
thereof,  with  affidavit  of  due  publication  and 
mailing,  must  be  filed  with  the  County  Recorder 
with  whom  the  inventory  has  been  filed,  which 
afiidavit  shall  be  prima  facie  evidence  of  the  facts 
stated  therein.  At  any  time,  or  from  time  to 
time,  after  the  expiration  of  thirty  days  from  the 
first  publication  of  said  notice  (provided,  the  same 
shall  also  have  been  mailed  as  in  this  section 
provided),  the  assignee  may,  in  his  discretion,  de- 
clare and  pay  dividends  to  the  creditors  whose 
claims  have  been  presented  and  allowed.  No  divi- 
dend already  declared  shall  be  disturbed  by  rea- 
son of  claims  being  subsequently  presented  and 
allowed;  but  the  creditor  presenting  such  claim 
shall  be  entitled  to  a  dividend  equal  to  the  per 
cent  already  declared  and  paid,  before  any  further 
dividend  is  made;  provided,  however,  that  there 
be  assets  sufficient  for  that  purpose,  and  pro- 
vided, that  the  failure  to  present  such  claim  shall 
not  have  resulted  from  his  own  neglect,  and  he 
shall  attach  to  such  claim  a  statement,  under 
oath,  showing  fully  why  the  same  was  not  be- 
fore presented.  When  a  creditor  has  a  mortgage 
(»r  pledge  of  real  or  personal  property  of  the  debt- 


§  3469  ASSIGNMENTS.  690 

or,  or  a  lien  thereon,  for  securing  the  payment  of 
a  debt  owing  to  him  from  the  debtor,  and  shall 
not  have  conveyed,  released,  or  delivered  up  sucli 
security  to  the  sheriff,  as  provided  for  bj^  section 
three  thousand  four  hundred  and  forty-nine  of  this 
Code,  he  shall  be  admitted  as  a  creditor  only  foi 
the  balance  of  the  debt  after  deducting  the  value 
of  such  mortgage,  pledge,  or  lien,  to  be  ascer- 
tained by  agreement  between  him  and  the  as- 
signee, or  by  a  sale  thereof,  to  be  made  in  sucli 
manner  as  the  Superior  Court  of  the  county  in 
which  the  assignment  is  made  shall  direct;  or  the 
creditor  may  release  or  convey  his  claim  to  the 
assignee  upon  such  property,  and  be  admitted  to 
prove  his  whole  debt.  If  the  value  of  the  prop- 
erty exceeds  the  sum  for  which  it  is  so  held  as 
security,  the  assignee  may  release  to  the  creditor 
the  debtor's  right  of  redemption  thereon  on  re- 
ceiving such  excess;  or  he  may  sell  the  property, 
subject  to  the  claim  of  the  creditor  thereon;  and 
in  either  case  the  assignee  and  creditor,  respec- 
tively, shall  execute  all  deeds  and  writings  neces- 
sary or  proper  to  consummate  the  transaction.  If 
the  property  is  not  sold  or  released,  and  delivered 
up,  the  creditor  shall  not  bo  allowed  to  prove  any 
part  of  his  debt.  [Amendment  approved  March 
26,  1895;  Stats.  1895,  03.    In  effect  in  sixty  days.] 

§  3469.  After  six  months  from  the  date  of  an 
assignment  for  the  benefit  of  creditors,  the 
assignee  may  be  required,  on  the  petition 
of  any  creditor  to  account  before  the  Su- 
perior Court  of  the  county  where  the  ac- 
companying inventory  was  filed,  in  the  manner 
prescribed  by  the  insolvent  laws  of  this  State. 
[Amendment  approved  February  15,  1883;  Stats. 
1883-4,  p.  000.    In  effect  February  15,  1883.] 

Polit.  Code.  sec.  19,  subd.  24,  continues  in  force. 
Act  of  May  4,  1862. 


691  ASSIGNMENTS.  §§  3470-3472 

§  3470.  Property  exempt  Horn  execution  and 
insurance  upon  the  life  of  the  assignor,  do  not 
pass  to  tlie  assignee  by  a  general  assignment  for 
the  benefit  of  creditors,  unless  the  instrument  spe- 
cially mentions  them,  and  declares  an  intention 
that  they  should  pass  thereby. 

§  3471.  The  elected  assignee  or  assignees  for 
the  benefit  of  creditors  shall  be  entitled  to  the 
same  commissions  on  assignments  heretofore  and 
hereafter  made  as  are  allowed  by  law  to  the  as- 
signees in  insolvency,  and  the  assignment  cannot 
grant  more.  Such  assignee  or  assignees  shall  also 
be  entitled  to  all  necessary  expenses  in  the  man- 
agement of  their  trust.  [Amendment  approved 
March  7,  1889;  Amendments  1889,  84.  In  effect 
March  7,  1889.] 

§  3472.  An  assignee  for  the  benefit  of  credit- 
ors is  not  to  be  held  liable  for  his  acts,  done  in 
good  faith,  in  the  execution  of  the  trust,  merely 
for  the  reason  that  the  assignment  is  afterward 
adjudged  void. 

§  3473.  An  assignment  for  the  benefit  of  credit- 
ors which  has  been  executed  and  recorded  so  as 
to  transfer  the  property  to  the  sheriff,  or  a  trans- 
fer by  the  sheriff  to  the  elected  assignee  or  as- 
signees which  has  been  executed  and  recorded, 
cannot  afterwards  be  modified  or  canceled  by  the 
parties  without  the  consent  of  the  assignor  and 
of  every  creditor  affected  thereby.  [Amendment 
approved  March  7,  1889;  Stats.  1889,  84.  In  ef- 
fect March  7,  1SS9.] 


PART   III. 


NUISANCE. 

Title  I.    General  Principles,  i 

II.    Public  Nuisances,  §§  3490-3495. 
III.    Private  Nuisances,  §§  3501-3503. 

TITLE  I. 

GENERAL  PRINCIPLES. 

§  3479,  Nuisance,  what. 

§  3480.  Public    nuisance. 

§  3481.  Private  nuisance. 

§  3482.  What  is  not  deemed  a  nuisance. 

§  3483.  Successive  owners. 

§  3484.  Abatement    does    not    preclude    action. 

§  3479.  Anything  Avhich  is  injurious  to  health, 
or  is  indecent  or  offensive  to  the  senses,  or  an 
obstruction  to  the  free  use  of  property,  so  as  to 
interfere  with  the  comfortable  enjoyment  of  life 
or  property,  or  unlawfully  obstructs  the  free  pas- 
sage or  use,  in  the  customary  manner,  of  any 
navigable  lal^e,  or  river,  bay,  stream,  canal,  or 
basin,  or  any  public  parl^,  square,  street,  or  high- 
way, is  a  nuisance.  [Amendment  approved  March 
30,  1874;  Amendments  1873-4,  2G8.  In  effect  July 
1.  1874.] 

Nuisances,  what  are,  and  remedies  for:  See 
Code  Civ.  Proc,  sec.  731;  Penal  Code,  sees.  370- 
371. 

Artesian  well  not  capped  so  as  to  prevent  waste 
is:  See  Penal  Code,  Appendix. 

§  3480.    A  public  nuisance  is  one  which  affects 


693  NUISANCE.  §§  3481-3484 

at  the  same  time  an  entire  community  or  neigh- 
borhood, or  any  considerable  number  of  persons, 
although  the  extent  of  the  annoyance  or  damage 
inflicted  upon  individuals  may  be  unequal. 
[Amendment  approved  March  30,  1874;  Amend- 
ments 1873-4,  208.    In  effect  July  1,  1874.] 

Abating  public  nuisance:   Sees.  3494,  3495. 

Public  nuisance  not  legalized  by  lapse  of  time: 
Sec.  3490. 

§  3481.  Every  nuisance  not  included  in  the  de- 
finition of  the  last  section  is  private. 

§  3482.  Nothing  which  is  done  or  maintained 
under  the  express  authority  of  a  statute  can  be 
deemed  a  nuisance. 

§  3483.  Every  successive  owner  of  property 
who  neglects  to  abate  a  continuing  nuisance  upon, 
or  in  the  use  of,  such  property,  created  by  a  form- 
er owner,  is  liable  therefor  in  the  same  manner  as 
the  one  who  first  created  it. 

Nuisances,  what  are,  and  actions  for:  See  Code 
Civ.  Proc.  sec.  731. 

§  3484.  The  abatement  of  a  nuisance  does  not 
prejudice  the  right  of  any  person  to  recover  dam- 
ages for  its  past  existence. 

Nuisance:    Penal  Code,  sees.  370-374. 


§§  3490-3495  PUBLIC  NUISANCES.  694 

TITLE  II. 
PUBLIC    NUISANCES. 

§  3490.  Lapse  of  time  does  not  legalize. 

§  3491.  Abatement. 

§  3492.  When  notice  is  required. 

§  3493.  Remedies  for  public  nuisance. 

§  3494.  Action. 

§  3495.  How  abated. 

§  3490.  No  lapse  of  time  can  legalize  a  public 
nnisauce,  amounting  to  an  actual  obstruction  of 
public  light. 

Public  nuisance  defined:    See  sec.  3480. 

§  3491.  The  remedies  against  a  public  nuisance 
are: 

1.  Indictment  or  information; 

2.  A  civil  action;  or, 

3.  Abatement.  [Amendment  approved  March 
2,  1880;  Amendments  1880,  1.  In  effect  March  2, 
1880.] 

§  3492.  The  remedy  by  indictment  or  informa- 
tion is  regulated  by  the  Penal  Code.  [Amend- 
ment approved  March  2,  1880;  Amendments, 
1880,  p.  1.] 

Punishment  for  nuisance:  Penal  Code,  sees.  370- 
374. 

§  3493.  A  private  person  may  maintain  an  ac- 
tion for  a  public  nuisance,  if  it  is  specially  injuri- 
ous to  himself,  but  not  otherwise. 

§  3494.  A  public  nuisance  may  be  abated  by 
any  public  body  or  officer  authorized  thereto  by 
lavp". 

§  3495.  Any  person  may  abate  a  public  nuis- 
ance which  is  specially  injurious  to  him  by  remov- 


595  PRIVATE  NUISANCES.  §§  3501-3503 

ing,  or,  if  necessary,  destroying  the  thing  which 
constitutes  the  same,  without  committing  a  breach 
of  the  peace,  or  doing  unnecessary  injury. 


TITLE  III. 

PRIVATE    NUISANCES. 

§  3501.     Remedies   for  private   nuisance. 
§  3502,    Abatement,  when  allowed. 
§  3503.    When  notice  is  required. 

§  3501.  The  remedies  against  a  private  nuis- 
ance are: 

1.  A  civil  action;  or, 

2.  Abatement. 

Civil  action  for  nuisance:  See,  generally,  sec. 
3493. 

§  3502.  A  person  injured  by  a  private  nuisance 
may  abate  it  by  removing,  or,  if  necessary,  de- 
stroying the  thing  which  constitutes  the  nuisance, 
without  committing  a  breach  of  the  peace,  or 
doing  unnecessary  injury. 

Abating  public  nuisance:   See  sees.  3494,  3495. 

§  3503.  Where  a  private  nuisance  results  from 
a  mere  omission  of  the  wrongdoer,  and  cannot  be 
abated  without  entering  upon  his  land,  reasonable 
notice  must  be  given  to  him  before  entering  to 
abate  it. 


PART  IV. 


MAXIMS    OF   JURISPRUDENCE. 

§  3509.  The  maxims  of  jurisprudence  herein- 
after set  forth  are  intended  not  to  qualify  any  of 
the  foregoing  provisions  of  this  Code,  but  to  aid  in 
their  just  application. 

§  3510.  When  the  reason  of  a  rule  ceases,  so 
should  the  rule  itself. 

§  3511.  Where  the  reason  is  the  same,  the  rule 
should  be  the  same. 

§  3512.  One  must  not  change  his  purpose  to  the 
injury  of  another. 

§  3513.  Any  one  may  waive  the  advantage  of 
a  law  intended  solely  for  his  benefit.  But  a  law 
established  for  a  public  reason  cannot  be  contra- 
vened by  a  private  agreement. 

§  3514.  One  must  so  use  his  own  rights  as  not 
to  infringe  upon  the  rights  of  another. 

§  3515.  He  who  consents  to  an  act  is  not 
wronged  by  it. 

§  3516.  Acquiescence  in  error  takes  away  the 
right  of  objecting  to  it. 

§  3517.  No  one  can  take  advantage  of  his  own 
wrong. 

§  3518.    He  who  has  fraudulently  dispossessed 


\ 


6S7  MAXIMS  OF  JURISPRUDENCE.      §§  3519-3530 

himself  of  a  thing  may  be  treated  as  if   he   still 
had  possession. 

§  3519.  He  who  can  and  does  not  forbid  that 
which  is  done  on  his  behalf  is  deemed  to  have 
bidden  it. 

§  3520.  No  one  should  suffer  by  the  act  of  an- 
other. 

§  3521.  He  who  takes  the  benefit  must  bear 
the  burden. 

§  3522.  One  who  grants  a  thing  is  presumed  to 
grant  also  whatever  is  essential  to  its  use. 

§  3523.    For  every  wrong  there  is  a  remedy. 

§  3524.  Between  those  who  are  equally  in  the 
right,  or  equally  in  the  wrong,  the  law  does  not 
interpose. 

§  3525.  Between  rights  otherwise  equal  the 
earliest  is  preferred. 

§  3526.  No  man  is  responsible  for  that  which 
no  man  can  control. 

§  3527.    The  law  helps  the  vigilant,  before  those 

Avho  sleep  on  their  rights. 

§  3528.  The  law  respects  form  less  than  sub- 
stance. 

§  3529.  That  which  ought  to  have  been  done 
is  to  be  regarded  as  done,  in  favor  of  him  to  whom 
and  against  him  from  whom,  performance  is  due. 

;j  3530.  That  which  does  not  appear  to  exist 
is  to  be  regarded  as  if  it  did  not  exist. 

Civ.  Code— 59 


§§  3531-3543      MAXIMS  OF  JURISPRUDENCE.  698 

§  3531.    The  law  never  requires  impossibilities. 

§  3532.  The  law  neither  does  nor  requires  idle 
acts. 

§  3533.    The  law  disregards  trifles. 

§  3534.  Particular  expressions  qualify  those 
which  are  general. 

§  3535.  Contemporaneous  exposition  is  in  gen- 
eral the  best. 

§  3536.    The  greater  contains  the  less. 

§  3537.    Superfluity  does  not  vitiate. 

§  3538.  That  is  certain  which  can  be  made  cer- 
tain. 

§  3539.    Time  does  not  confirm  a  void  act. 

§  3540.  The  incident  follows  the  principal,  and 
not  the  principal  the  incident. 

§  3541.  An  interpretation  which  gives  effect  is 
preferred  to  one  which  malies  void. 

§  3542.    Interpretation  must  be  reasonable. 

§  3543.  Where  one  of  two  innocent  persons 
must  suffer  by  the  act  of  a  third,  he,  by  whose 
negligence  it  happened  must  be  the  sufferer. 


Approved,  March  21,  1872. 

NEWTON  BOOTH, 

Governor. 


CIVJL  CODE.  699 

The  amendments  which  took  effect  July  1.  1874, 
and  are  so  marked  at  the  end  of  each  section,  were 
passed  by  Act  of  March  30.  1874.  the  closing  para- 
graph of  which  is  as  follows: — 

"All  provisions  of  law  inconsistent  with  the  pro- 
visions of  this  act  are  hereby  repealed,  but  no 
rights  acquired  or  proceedings  taken  under  the 
provisions  repealed,  shall  be  impaired  or  in  any 
manner  affected  by  this  repeal;  and  whenever  a 
limitation  or  period  of  time  is  prescribed  by  such 
repealed  provisions  for  acquiring  a  right  or  bar- 
ring a  remedy,  or  for  any  other  purpose,  has  be- 
gun to  run  before  this  act  takes  effect,  and  the 
same  or  any  other  limitation,  is  prescribed  by  this 
act,  the  time  of  limitation  which  shall  have  run 
when  this  act  takes  effect  shall  be  deemed  part  of 
the  time  prescribed  by  this  act. 

'•AYith  relation  to  the  laws  passed  at  the  present 
session  of  the  legislature,  this  act  must  be  con- 
strued as  though  it  had  been  passed  at  the  first 
day  of  the  present  session,  if  the  provisions  of  any 
law  passed  at  the  present  session  of  the  legisla- 
ture contravenes  or  is  inconsistent  with  the  pro- 
visions of  this  act,  the  provisions  of  such  law 
must  prevail. 

"This  act  shall  take  effect  on  the  first  day  of 
July,  one  thousand  eight  hundred  and  seventy- 
four. 

"Approved,  March  30,  1874." 


APPENDIX. 


APPENDIX 


ACKNOWLEDGMENTS. 

An  Act  to  legalize  certain  acknowledgments. 
[Approved  March  2,  1891;  Stats.  1891,  20.] 

Section  1.  All  acknowledgments  of  deeds  and 
other  instruments  of  writing,  whereby  real  estate, 
or  any  interest  therein,  is  conveyed  or  may  be  af- 
fected, heretofore  taken  before  court  commission- 
ers, and  by  them  certified  in  the  usual  legal  form, 
shall,  from  and  after  the  passage  of  this  act,  have 
the  same  force  and  effect  for  all  purposes  as 
though  such  acknowledgments  had  been  taken  be- 
fore and  certified  by  a  clerk  of  a  court  of  record,  or 
a  county  recorder,  or  a  notary  public;  and  the  rec- 
ords of  such  deeds  or  instruments,  if  the  same 
shall  have  been  admitted  for  record,  shall  here- 
after impart  notice  to  the  same  extent  as  though 
such  acknowledgments  had  been  taken  before  and 
certified  by  any  one  of  the  above-named  otficers; 
provided,  nothing  in  this  act  shall  be  so  construed 
as  in  any  manner  to  affect  the  rights  of  any  sub- 
sequent purchaser  in  good  faith. 

Sec.  2.  This  act  shall  take  effect  from  and  after 
its  passage. 


704  APPENDIX. 

An  Act  to  legalize  acknowledgments  of  certificates 
in  writing  required  by  section  two  of  an  act 
entitled  "An  Act  to  provide  for  the  formation 
of  chambers  of  commerce,  boards  of  trade,  me- 
chanic institutes,  and  other  l^indred  protective 
associations,"  approved  March  thirty-first, 
eighteen  hundred  and  sixty-six,  heretofore 
made  or  talien,  and  to  legalize  all  certificates 
heretofore  made,  signed,  and  acl^nowledged, 
and  filed  under  section  two  of  said  act. 

[Approved  March  10,  1885;  1885,  55.] 

Section  1.  All  acknowledgments  heretofore  made 
or  taken  to  the  certificate  in  writing  required  by 
section  two  of  an  act  entitled  "An  act  to  provide 
for  the  formation  of  chambers  of  commerce, 
boards  of  trade,  mechanic  institutes,  and  other 
kindred  protective  associations,"  approved  March 
thirty-first,  eighteen  hundred  and  sixty-six,  wheth- 
er proven  by  a  witness  or  otherwise,  and  all  cer- 
tificates in  writing  heretofore  made,  signed,  and 
acknowledged,  and  filed  under  section  two  of  said 
act,  though  said  certificates  and  acknowledgments 
be  defective  or  irregular,  are  hereby  legalized  and 
made  valid. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage. 


An  Act  to  legalize  certain  acknowledgments. 

[Approved  February  25,  1897.] 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.    All  acknowledgments    of  deeds    and 
other  instruments  of  writing,  whereby  real  estate, 


APPENDIX.  705 

or  any  interest  therein,  is  conveyed  or  may  be  af- 
fected, Iieretofore  taken  before  court  commission- 
ers or  a  county  clerk,  and  by  them  or  bim  certi- 
fied in  the  usual  legal  form,  shall,  from  and  after 
the  passage  of  this  act,  have  the  same  force  and 
effect  for  all  purposes,  as  though  such  acknowledg- 
ments had  been  taken  before  and  certified  by  a 
clerk  of  a  court  of  record,  or  a  county  recorder,  or 
a  notary  public;  and  the  record  of  such  deeds  or 
instruments,  if  the  same  shall  have  been  admitted 
to  record,  shall  hereafter  impart  notice  to  the  same 
extent  as  though  such  acknowledgments  had  been 
taken  before  and  certified  by  any  one  of  the  above- 
named  officers,  and  said  records  and  duly  certified 
copies  thereof,  shall  have  the  same  effect  in  evi- 
dence as  though  said  deeds  or  instruments  had 
been  originally  acknowledged  and  certified  before, 
and  by  duly  authorized  officers;  provided,  nothing 
in  this  act  shall  be  so  construed  as  in  any  manner 
to  affect  the  rights  of  any  subsequent  purchaser 
in  good  faith  and  for  value. 

Sec.  2.    This  act  shall  take  effect  from  and  after 
its  passage. 


ANIMALS. 

An  Act  to  prevent  combinations  to  obstruct  the 
sale  of  livestock  in  the  State  of  California. 

[Approved  February  27,  1893;  Stats.  1893,  30.] 

§  1.  Combinations    to    prevent    buying    live    stock    prohib- 
ited. 

§  2.  Corporations  prohibited. 

§  3.  By-lav.-s    of   corporations. 

§  4.  Trusts,  comtinatlons  or  conspiracies. 

§  5.  Selling  live  stock  at  any  market. 

§  3.  Punishment. 

Section  1.    It  shall  be  unlawful  for  any  two  or 
more  persons  or  corporations  to  combine  or  agree 


706  APPENDIX. 

together  to  do  any  act  which  will,  in  any  respect, 
prevent  any  person  from  buying  livestock  at  any 
place  in  this  State  from  any  person  having  the 
same  for  sale,  either  for  himself  or  as  the  repre- 
sentative or  agent  of  the  owner  of  the  same. 

Sec.  2.  It  shall  be  unlawful  for  any  corporation 
organized  under  the  laws  of  this  State,  or  any 
board  of  directors  or  trustees,  or  stocliholders,  or 
agents,  or  officers  of  any  corporation,  to  have, 
pass,  or  enforce  any  rule,  by-law,  or  regulation 
whereby  any  officer,  stoclj;holder,  member,  share- 
holder, agent,  servant  thereof,  or  any  other  person 
in  any  way  interested  in  or  connected  with  such 
corp:  ration,  shall  in  any  respect  be  prohibited,  pre- 
vented, or  enjoined  from  buying  livestocli  from 
any  other  person  having  such  livestocli  for  sale, 
either  as  owner  thereof,  or  as  the  agent,  represen- 
tative, or  assistant  of  such  owner,  in  any  market 
in  this  State,  where  livestock  is  brought  to  be  sold. 

Sec.  3.  Every  rule,  regulation,  or  by-law  of  any 
corporation  doing  business  in  this  State,  which  has 
for  its  purpose,  or  which,  directly  or  indirectly, 
tends  to  prevent  its  members  or  stockholders  from 
freely  purchasing  livestock  from  any  person  law- 
fully having  the  same  for  sale,  upon  any  livestock 
market  of  this  State,  are  hereby  declared  to  be 
contrary  to  the  public  policy  of  this  State,  and  un- 
lawful and  void;  and  any  person  or  persons  who 
shall  attempt,  directly  or  indirectly,  to  enforce  any 
such  rule,  regulation  or  by-law,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  in  addition  to  the 
penalties  prescribed  by  this  act  shall  be  personally 
liable  for  all  damages  which  may  arise  from  the 
enforcement  of  such  rule,  regulation,  or  by-law,  to 
any  person  damaged  thereby. 

Sec.  4.  No  trusts,  combinations,  or  conspiracies 
shall  be  organized  or  exist  in  this  State,  to  prevent 
any  person  or  persons,  or  corporation,  from  selling 
livestock  on  commission,  for  such  an  amount  of 


APPENDIX.  707 

commission  as  any  person  engaged  in  the  business 
may  see  fit  to  cliarge;  and  all  rules,  regulations, 
by-laws,  or  agreements  of  any  corporation,  asso- 
ciation, society,  or  combination  of  persons,  where- 
by any  such  corporation,  society,  association,  or 
combination  of  individuals  are  required  to  charge 
not  less  than  a  given  sum  for  commissions,  or 
whereby  any  person  or  commission  merchant  is, 
in  any  respect,  restrained  from  charging  less  than 
a  certain  fixed  sum  for  his  services  as  such  com- 
mission merchant  in  the  sale  of  livestocl^,  are 
hereby  declared  to  be  contrary  to  the  public  policy 
of  this  State,  and  unlawful;  and  any  person  who 
shall  enter  into  any  such  trust,  combination,  or 
conspiracy,  or  who  shall  enforce  or  aid,  abet,  as- 
sist, or  encourage  the  enforcement  of  any  such 
rule,  regulation,  by-law,  or  agreement,  shall  be  lia- 
ble to  the  penalties  prescribed  by  this  act,  and  also 
shall  be  personally  liable  to  any  person,  individual, 
society,  or  corporation  who  may  be  injured  in  his 
property  or  business  thereby,  to  the  full  extent  of 
the  injury  resulting  therefrom. 

Sec.  5.  Whoever  shall,  directly  or  indirectly,  be 
a  party  to  any  combination,  conspiracy,  or  associa- 
tion, which  attempts,  directly  or  indirectly,  to  pre- 
vent any  other  person  from  freely  selling  livestock 
at  any  market  in  this  State  for  such  persons  as  see 
fit  to  engage  his  services,  or  shall  endeavor  to  com- 
pel, directly  or  indirectly,  any  person  to  charge 
not  less  than  a  fixed  minimum  sum  for  services  in 
the  sale  of  livestock,  or  shall,  in  any  way,  hinder 
or  prevent  another  from  lawfully  selling  livestock 
for  another,  for  such  rate  of  commission  as  may 
be  agreed  upon  by  the  owner  of  the  livestock  and 
the  commission  merchant,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  suffer  the  penalties  pre- 
scribed by  this  act,  and  shall  be  personally  liable 
to  any  one  aggrieved  thereby,  for  the  full  amount 
of  any  damage  sustained  by  such  person. 


10^  APPENDIX. 

Sec.  6.  Any  one  who  shall  violate  the  provisions 
of  this  act  shall  be  punished  by  a  fine  in  any  sum 
not  less  than  five  hundred  dollars,  and  not  more 
than  five  thousand  dollars,  or  by  imprisonment  in 
the  county  jail  not  exceeding  one  year,  or  by 
either  or  both,  in  the  discretion  of  the  court,  and 
shall  be  liable,  in  civil  action,  to  any  person  ag- 
grieved, in  such  damages  as  he  or  she  may  have 
sustained  by  the  violation  of  this  act. 

Sec.  7.  This  act  shall  take  effect  and  be  in  force- 
from  and  after  its  passage. 


APPRENTICES. 

An  Act  relative  to  apprentices  and  masters. 

[Approved  April  3,  187G;  1875-6,  842.] 

§    1.  Minors  may  be  apprenticed. 

§    2.  By  whom. 

§    3.  Consent  of  minor  necessary. 

§    4.  Indentures. 

§    5.  Idem. 

^    6.  Idem— What  to  be  decided  before  they  take  effect. 

§    7.  Executor  may  bind. 

§    8.  Superior  court  may  bind. 

§    9.  Obligations  of  master. 

§  10.  Money  consideration  and  clothes. 

§  11.  Treatment  of  apprentices. 

§  12.  Age  to  be  stated. 

§  13.  Court  to  hear  complaints, 

§  14.  Court  may  discharge  apprentice. 

§  15.  Liability  of  master. 

§  16.  Action  against  apprentice  for  neglect,   misdemeanor, 

etc. 

§  17.  Court  may  dissolve  apprenticeship. 

§  18.  Liability  of  parties  to  indenture. 

§  19.  Misdemeanor. 

§  20.  When  master  removes  from  this  State. 

Minors  may  be  apprenticed. 

Section  1.    All  minors,   at  the  age  of  fourteen 
years,  may  be  bound  by  covenant  or  indenture,  in 


APPENDIX.  709 

conformity  witli  the  stipulations  herein  specified, 

to  any  mechanical  trade  or  art,  or  the  occupation 

of  farming,  as  apprentices;  males  to  the  age  of 

twenty-one   years,    nnd   females   to   the     age     of 

eighteen. 

Minors  may  be  apprenticed,  by  Avhom. 

Sec.  2.  Minors,  at  or  above  the  age  of  fourteen 
yeai-s,  may  be  bound  by  the  father,  or  in  case  of 
his  death,  incompetency,  or  where  he  shall  have 
willfully  abandoned  his  family  for  one  year,  with- 
out making  suital>le  provision  for  their  support, 
or  has  become  an  habitual  drunkard,  vagrant,  etc., 
then  by  their  mother,  or  by  their  legal  guardian; 
and  if  illegitimate,  they  may  be  bound  by  their 
mother;  and  if  they  have  no  parent  competent  to 
act,  and  no  guardian,  they  may  bind  themselves, 
with  the  approbation  of  the  superior  court  of  the 
county  where  they  reside;  but  the  power  of  a  moth- 
er to  bind  her  children,  whether  legitimate  or  ille- 
gitimate, shall  cease  upon  her  subsequent  mar- 
riage, and  shall  not  be  exercised  by  herself  or  her 
husband,  at  any  time  during  her  marriage,  with- 
out the  approval  of  the  Superior  Court  of  the 
county  wherein  she  or  he  resides.  [Amendment 
approved  April  9,  1880;  Amendments  1880,  28  (Ban. 
ed.  177).    Took  effect  immediately.] 

See  post  sees,  6,  7,  8. 
Consent  of  minor  necessary. 

Sec.  3.    In  all  cases  the  consent  of  the  minor, 
personally,  is  required  as  a  party  to  the  covenant, 
and  should  be  so  expressed  in  the  indenture,  and 
testified  by  his  or  her  signing  the  same. 
Indentures. 

Sec.  4.  Indenttires  shall  be  signed,  sealed,  and 
delivered,  in  duplicate  copies,  in  the  presence  of 
all  the  parties  concerned;  and  when  made  with 
the  approbation  of  the  Superior  Court,  or  the 
judge  thereof,  in  vacation,  such  approbation  shall 
be  certified  in  writing,  indorsed  upon  each  copy  of 

Civ.    Code— 60 


710  APPENDIX. 

the  indenture.  One  copy  of  the  indenture  shall  be 
kept  for  the  use  of  the  minor  by  his  parent  or 
guardian  (when  executed  by  them  respectively), 
but  when  made  with  the  approbation  of  the  court, 
it  shall  be  deposited  in  the  safekeeping  of  the 
clerk  of  said  court  for  the  use  of  the  minor.  The 
other  copy  shall  be  held  by  the  master,  and  de- 
livered up  by  him  to  the  apprentice  at  the  expira- 
tion of  his  term  of  service.  [Amendment  approved 
April  9,  1880;  Amendments  1880,  28  (Ban.  ed.  178). 
Took  effect  immediately.] 
Sp-ine. 

Sec.  5.  No  indenture  of  apprentice,  made  in 
pursuance  of  this  act,  shall  bind  the  minor  after 
the  death  of  his  master;  but  the  apprenticeship 
shall  be  thenceforth  discharged,  and  the  minor 
may  be  bound  out  anew. 
Same. 

Sec.  6.  Facts  of  incapacity,  desertion,  drunk- 
enness, vagrancy,  etc.,  shall  be  decided  in  the  said 
court  by  a  jury,  before  the  indenture  shall  take 
effect,  and  an  indorsement  on  the  indenture,  under 
seal  of  the  court,  that  the  charge  or  charges  are 
proved,  shall  be  sutticieut  evidence  of  the  mother's 
power  to  give  such  consent;  but  if  the  jury  do 
not  find  the  charge  or  charges  to  be  true,  the  per- 
son at  Avhose  instance  such  proceedings  may  have 
been  had  shall  pay  all  costs  attending  the  same. 
[Amendment  approved  April  9,  1880;  Amendments 
1880,  28  (Ban.  ed.  178.)  Took  effect  immediately.] 
Executor  may  bind. 

Sec.  7.  The  executor,  who  by  the  will  of  a 
father  is  directed  to  bring  up  his  child  to  a  trade 
or  calling,  shall  have  power  to  bind  such  by  in- 
denture in  like  manner  as  the  father,  if  living, 
might  have  done. 
Superior  court  may  bind. 

Sec.  8.  When  any  minor  who  is  poor,  home- 
less, chargeable  to  the  county,  or  an  outcast,  has 


APPENDIX.  711 

no  visible  means  of  obtaining  an  honest  liveli- 
hood, it  shall  be  lawful  for  the  said  court  to  bind 
such  apprentice  until,  if  a  male,  he  arrives  at  the 
age  of  twenty-one,  and  if  a  female,  to  the  age  of 
eighteen.  [Amendment  approved  April  9,  1880; 
Amendments  1880,  28  (Ban.  ed.  178).  Took  effect 
immediately.] 
Obligations  of  masters. 

Sec.  0.  It  shall  be  unlawful  for  any  master 
to  remove  an  apprentice  out  of  this  State;  and  in 
all  indentures  by  the  said  court  for  binding  out  an 
orphan,  or  homeless  minor,  as  an  apprentice,  there 
shall  be  inserted,  among  other  covenants,  a  clause 
to  the  following  effect:  That  the  master  to  whom 
such  minor  shall  be  bound  shall  cause  the  same 
to  be  taught  to  read  and  write,  and  the  ground 
rules  of  arithmetic,  and  the  ratio  and  proportion, 
and  shall  give  him  requisite  instruction  in  the  dif- 
ferent branches  of  his  trade  or  calling,  and  at  the 
expiration  of  his  term  of  service  shall  give  him 
two  full  new  suits  of  clothes  and  the  sum  of  fifty 
dollars,  gold;  and  if  a  female,  she  shall  have  two 
tine  new  suits  of  clothes  and  the  sum  of  fifty 
dollars,  gold;  the  two  new  suits  in  either  case  to 
be  worth  at  least  sixty  dollars,  gold.  [Amend- 
ment, approved  April  9,  1880;  Amendments  1880, 
29  (Ban.  ed.  ITS).  Took  effect  immediately.] 
Money  considerations  and  clothes  the  property  of 

apprentice. 

Sec.  10.  All  considerations  of  money  or  clothes 
paid  or  allowed  by  the  master,  in  conformity  with 
the  foregoing  section,  are  the  sole  property  of  the 
apprentice,  and  to  whom  the  master  is  accounta- 
ble for  the  same,  and  he  shall  pay  or  donate  into 
the  hand  of  the  apprentice  alone. 
Treatment  of  apprentices. 

Sec.  11.  Parents  and  guardians  and  the  said 
court  shall,  from  time  to  time,  inquire  into  the 
treatment  of  the  children  bound  by  them,  respect- 


712  APPENDIX. 

ively,  or  with  their  approbation;  and  the  judges 
of  the  said  courts  shall  be  responsible  for  the 
charge  of  indentured  apprentices  bound  by  the  ap- 
probation of  their  predecessors  in  oflice,  and  de- 
fend them  from  all  cruelty,  neglect,  breach  of 
contract,  or  misconduct  on  the  part  of  their  mas- 
ters. [Amendment  approved  April  9,  1880; 
Amendments  1880,  29  (Ban.  ed.  178).  Took  effect 
immediately.] 
Age  to  be  stated. 

Sec.  12.  The  age  of  every  apprentice  shall  be 
inserted  in  the  indenture;  and  all  indentures  en- 
tered into  otherwise  than  as  is  herein  provided 
shall  be,  as  to  all  apprentices  under  age,  utterly 
void. 
Court  to  hear  complaints. 

Sec.  13.  The  Superior  Court  shall  hear  the 
complaints  of  apprentices,  who  reside  within  the 
county,  against  their  masters,  alleging  undeserved 
or  immoderate  correction,  insutficient  allowance  of 
food,  raiment,  or  lodging,  want  of  instruction  in 
the  different  branches  of  their  trade  or  calling,  or 
that  they  are  in  danger  of  being  removed  out  of 
the  State,  or  any  violation  of  the  indenture  of  ap- 
prenticeship; and  the  court  may  hear  and  deter- 
mine such  cases,  and  mal^e  such  order  therein  as 
will  relieve  the  party  in  the  future.  [Amend- 
ment approved  April  9,  1880;  Amendments  1880, 
29  (Ban.  ed.  179).  Tooli  effect  immediately.] 
Court  may  discharge  apprentice. 

Sec.  14.  The  Superior  Court  shall  have  power, 
where  circumstances  require  it,  to  discharge  an 
apprentice  from  his  apprenticeship,  and  in  case 
any  money,  or  other  thing,  has  been  paid  or  con- 
tracted to  be  paid  by  either  party  in  relation  to 
such  apprenticeship,  the  court  shall  make  such 
order  concerning  the  same  as  shall  seem  just  and 
reasonable.  If  the  apprentice  so  discharged  sliall 
have  been  originally  bound  by  the  Superior  Court, 


APPENDIX.  713 

it  shall  be  the  duty  of  th^  court,  if  found  neces- 
sary, again  to  bind  such  apprentice,  if  under  age. 
[Amendment  approved  April  9,  1880;  Amend- 
ments 1880,  29  (Ban.  ed.  179).  Took  effect  imme- 
diately.] 
Liability  of  master. 

Sec.  15.  Every  master  shall  be  liable  to  an  ac- 
tion on  the  indenture  for  the  breach  of  any  coven- 
ant on  his  part  therein  contained;  and  all  damages 
recovered  in  such  action,  after  deducting  the  nec- 
essary charges  in  prosecuting  the  same,  shall  be 
the  property  of  the  minor,  and  shall  be  applied  and 
appropriated  to  his  use  by  the  person  who  shall 
recover  the  same,  and  shall  be  paid  to  the  minor, 
if  a  male,  at  the  age  of  tAveuty-oue  years,  and  if 
a  female,  at  the  age  of  eighteen  years.  If  such 
action  is  not  brought  during  the  minority  of  such 
apprentice,  it  may  be  commenced  in  his  own  name 
at  any  time  within  six  months  after  coming  of 
age,  but  not  later  than  two  years. 
Action  against  apprentice  for  neglect,  misde- 
meanor, etc. 

Sec.  16.  An  apprentice  who  shall  be  guilty  of 
any  gross  misbehavior,  or  refusal  to  do  his  duty,^ 
or  willful  neglect  thereof,  shall  render  himself  lia- 
ble to  the  complaint  of  the  master  in  the  Superior 
Court  of  the  county  wherein  he  resides,  which 
complaint  shall  set  forth  the  circumstances  of  the 
case;  and  to  said  complaint  shall  be  attached  a 
citation,  signed  by  the  cleric;  of  said  court,  requir- 
ing the  apprentice,  and  all  persons  who  have  cov- 
enanted in  his  behalf,  to  appear  and  answer  ta 
such  complaint,  which  complaint  and  citation  shall 
be  served  on  them  in  the  usual  manner  of  serving^ 
civil  process.  [Amendment  approved  April  9,  ISSO; 
Amendments  1880,  29  (Ban.  ed.  179).  Took 
effect  immediately.] 
Court  may  dissolve  apprenticeship. 
Sec.  17.    The  court  shall  proceed   to   hear  and 


714  APPENDIX. 

determine  the  cause,  and  after  a  full  hearing  of 
the  parties,  or  if  the  adverse  party  shall  neglect  to 
appear  after  due  notice,  the  court  may  render 
judgment  or  decree  that  the  master  be  discharged 
from  the  contract  of  apprenticeship,  and  for  the 
costs  of  suit;  such  costs  to  be  recovered  of  the 
parent  or  guardian  of  the  minor,  if  there  be  any 
who  signed  the  indenture,  and  execution  therefor 
issued  accordingly;  and  if  there  be  no  parent  or 
guardian  liable  for  such  costs,  execution  may  be 
issued  therefor  against  the  minor,  or  the  amount 
thereof  may  be  recovered  in  an  action  against  him 
after  he  shall  arrive  at  full  age. 
Liability  of  parties  to  indenture. 

Sec.  18.  The  parties  to  an  indenture  shall  also 
be  liable  to  the  master  in  an  action  on  the  in- 
denture, for  the  breach  of  any  covenant  on  their 
part  therein  contained,  committed  before  the.  mas- 
ter Avas  so  discharged  from  such  indenture. 
Misdemeanor. 

Sec.  19.  It  shall  be  unlawful  for  any  person  to 
entice,  counsel,  or  persuade  to  run  away  any  ap- 
prentice, or  employ,  harbor,  or  conceal  such,  know- 
ing said  apprentice  to  be  a  runaway;  and  the  par- 
ties so  offending  shall  be  guilty  of  a  misdemeanor, 
and  be  subject  to  tine  of  not  less  than  fifty  and 
not  more  than  one  hundred  dollars,  to  be  recovered 
by  the  master  in  any  court  having  jurisdiction 
thereof. 
When  master  removes  from  this  State. 

Sec.  20.  Whenever  any  master  of  an  apprentice 
shall  wish  to  remove  out  of  this  State,  or  to  quit 
his  trade  or  business,  he  shall  appear  with  his 
apprentice  before  the  Superior  Court  of  the  proper 
county,  and  if  the  court  be  satisfied  that  the  mas- 
ter has  done  justice  to  the  said  apprentice  for  the 
time  he  has  had  charge  of  the  same,  such  court 
shall  have  power  to  discharge  such  apprentice  from 
the  service  of  such  master,  and  again  bind  him, 


APPENDIX.  715 

if  necessary,  to  some  other  person.  [Amendment 
approved  April  9,  18S0;  Amendments  1880,  30  (Ban. 
ed.  179).    Tooli  etfect  immediately'.] 

Sec.  21.  All  acts  and  parts  of  acts  in  conflict 
with  the  provisions  of  this  act  are  hereby  re- 
Dealed. 

Sec.  22.  This  act  shall  take  effect  and  be  in 
force  from  and  after  its  passage. 


BANKS  AND    BANKING. 

[See  Acts  relating"  to  this  subject  in  Volume  of 
General  Laws,  title,  Banks  and  Banking.] 

An  Act  to  repeal  an  Act  entitled  "An  Act  con- 
cerning corporations  and  persons  engaged  in 
the  business   of  banking,"   approved  April  1, 

187G. 

[Approved  March  26,  1895;  Stats.  1895,  p.  77.] 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  That  an  Act  entitled  "An  Act  con- 
cerning corporations  and  persons  engaged  in  the 
business  of  banking."  approved  April  first, 
eighteen  hundred  and  seventy-six,  be  and  the 
same  is  hereby  repealed. 

Sec.  2.  This  Act  shall  take  effect  and  be  in 
force  from  and  after  its  passage. 


APPENDIX. 


An  Act  to  compel  savings    banks    to  publish  a 
sworn  statement  of  all  unclaimed  deposits. 

[Approved  March  23,  1893;  Stats.  1893,  p.  183.] 

Section  1.  The  cashier  or  secretary  of  every 
savings  banli,  savings  and  loan  society,  and  every 
institution  in  which  deposits  of  money  are  made 
and  interest  paid  thereon,  shall,  within  fifteen 
days  after  the  first  day  of  December,  in  the  year 
one  thousand  eight  hundred  and  ninety-three,  and 
within  fifteen  days  of  the  first  day  of  December 
of  each  and  every  second  succeeding  year  there- 
after, return  to  the  board  of  banli  commissioners 
a  sworn  statement,  showing  the  amount  standing 
to  his  credit,  the  last  known  place  of  residence  or 
postofiice  address,  and  the  fact  of  death,  if  known 
to  said  cashier  or  secretary,  of  every  depositor 
who  shall  not  have  made  a  deposit  therein,  ur 
withdrawn  therefrom  any  part  of  his  deposit,  or 
any  part  of  the  interest  thereon,  for  a  period  of 
more  than  ten  years  next  preceding;  and  the  cash- 
iers or  secretaries  of  such  savings  banks,  savings 
and  loan  societies,  and  institutions  for  deposit  of 
savings,  shall  give  notice  of  these  deposits  in  one 
or  more  newspapers  published  in  or  nearest  to  the 
city,  city  and  county,  or  town  where  such  banks 
are  situated,  at  least  once  a  week  for  four  suc- 
cessive weeks,  the  cost  of  such  publications  to  be 
paid  pro  rata  out  of  said  unclaimed  deposits;  pro- 
vided, however,  that  this  act  shall  not  apply  to  or 
affect  the  deposit  made  by  or  in  the  name  of  any 
person  known  to  the  said  cashier,  or  secretary  to 
be  living,  any  deposit  which,  with  the  accumula- 
tions thereon,  shall  be  less  than  fifty  dollars. 

Sec.  2.  The  board  of  bank  commissioners  shall 
incorporate   in  their   subsequent   report   each   re- 


APPENDIX.  71? 

turn  ^vhicli  shall  have  been  made  to  them,  as  pro- 
vided in  section  one  of  this  act. 

Sec.  3.  Any  cashier  or  secretary  of  either  of  the 
banliing  institutions  mentioned  in  section  one  of 
this  act  nej^lecting  or  refusing  to  make  the  sworn 
statement  required  by  said  section  one,  shall  be 
miilty  of  a  misdemeanor. 


An  Act  to  compel  all  depositaries  of  money  and 
commercial  banlis  to  publish  a  sworn  state- 
ment of  all  unclaimed  deposits. 

[Approved  February  25,  1897.] 

§  1.  Sworn  statement,  duty  to  file. 
§  2.  Bank  commissioners  to  report. 
§  3.     Misdemeanor. 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  The  president,  cashier,  or  secretary 
of  every  banlv,  depositary,  society,  or  institution 
of  every  kind  or  character  which  receive  money  on 
deposit,  or  in  which  deposits  of  money  are  made, 
and  upon  which  deposits  no  interest  is  paid,  shall, 
within  fifteen  days  after  the  first  day  of  June 
in  the  year  one  thousand  eight  hundred  and  nine- 
ty-seven, and  within  fifteen  days  of  the  first  day 
of  June  of  each  and  every  second  succeeding  year 
thereafter,  return  to  the  Board  of  Bank  Commis- 
sioners, a  sworn  statement  showing  the  amount 
standing  to  his  credit,  the  last  known  place  of 
residence  or  postoffice  address,  and  the  fact  of 
death,  if  known  to  said  president,  cashier,  or  sec- 
retary, of  every  depositor  of  such  bank,  depos- 
itary, society,  or  institution,  who  shall  not  have 
made  a  deposit  therein,  or  withdrawn  therefrom 
any  part  of  his  deposit  or  funds  to  his  credit  there- 


718  APPENDIX. 

in,  for  a  period  of  more  than  ten  years  next  pre- 
ceding; and  the  presidents,  easliieus,  or  secretaries, 
of  all  such  banlvs,  depositaries,  societies,  and  insti- 
tutions, which  receive  money  on  deposit  or  in 
which  deposits  of  money  is  made,  shall  give  no- 
tice of  these  deposits,  in  one  or  more  newspapers 
published  in  or  nearest  to  the  city,  city  and  coun- 
ty, or  town  where  such  banks,  depositaries,  soci- 
eties, or  institutions  are  situated,  at  least  once  a 
weelv  for  four  successive  weeks,  the  cost  of  such 
publications  to  be  paid  pro  rata  out  of  said  un- 
claimed deposits;  provided,  however,  that  this  Act 
shall  not  apply  to  or  affect  the  deposit  made  by 
or  in  the  name  of  any  person  known  to  the  said 
presidents,  cashiers,  or  secretaries,  to  belong,  or 
any  deposit  which,  with  the  accumulations  there- 
on, shall  be  less  than  fifty  dollars. 

Sec.  2,  The  board  of  bank  commissioners  shall 
incorporate  in  their  subsequent  report  each  return 
which  shall  have  been  made  to  them,  as  provided 
in  section  one  of  this  Act. 

Sec.  3.  Any  president,  cashier,  or  secretary  of 
either  of  the  banks,  depositaries,  societies,  or  in- 
stitutions named  in  section  one  of  this  Act,  neg- 
lecting or  refusing  to  make  the  sworn  statement 
required  by  said  section  one.  shall  be  guilty  of  a 
misdemeanor. 


APPeJNDIX.  <  719 


An  Act  to  amend  an  Act  entitled,  "An  Act  to  pro- 
vide for  the  Formation  of  Corporations  for  the 
Accumulation  and  Investment  of  Funds  and 
Savings,"  approved  April  eleventh,  eighteen 
hundred  and  sixty-two.  [Stats.  1871-2,  pp. 
132-3.] 

[Enacting  clause.] 

§  1.    Acts  not  lawful. 

§  2.    Increase  of  capital  stock. 

§  3.    Idem. 

Section  1.  Section  eighteen  of  an  act  entitled 
"An  act  to  provide  for  the  formation  of  corpora- 
tions for  the  accumulation  and  investment  of 
funds  and  savings,''  approved  April  eleventh, 
eighteen  hundred  and  sixty-two,  is  hereby  amend- 
ed so  as  to  read  as  follows: 

Sec.  18.  It  shall  not  be  lawful  for  the  directors 
to  divide,  withdraw,  or  in  any  way  pay  to  the 
stocliholders,  or  any  of  them,  any  part  of  the  cap- 
ital stock,  nor  to  reduce  the  amount  of  the  same, 
except  as  hereinafter  provided. 

Sec.  2.  Section  nineteen  of  the  act  mentioned  in 
the  first  section  of  this  act  is  hereby  amended  so 
as  to  read  as  follows: 

Sec.  19.  Whenever  it  is  desired  to  increase  the 
amount  of  capital  stock,  and  in  cases  where  the 
capital  stock  is  partly,  but  not  all  taken  and  paid 
in  it  is  desired  to  reduce  the  same  to  not  less  than 
the  amount  paid  in,  a  meeting  of  stockholders  may 
be  called,  by  a  notice  signed  by  at  least  a  ma- 
jority of  the  directors,  and  published  at  least 
sixty  days  in  every  issue  of  some  newspaper  pub- 
lished in  the  county  where  the  principal  place  of 
business  of  the  company,  is  located,  which  notice 
shall  specify  the  object  of  the  meeting,  the  time 
and  place  where  it  is  to  be  held,  and  the  amount 


720  APPENDIX. 

to  which  it  is  proposed  to  increase  or  reduce  the 
capital  stock,  as  the  case  may  be;  and  a  vote  of 
two-thirds  of  all  the  shares  of  stock  represented 
at  the  meeting  shall  be  necessary  to  an  increase 
or  decrease  of  the  amount  of  capital  stock;  pro- 
vided, that  nothing  in  this  act  contained  shall  be 
held  to  authorize  the  release  of  any  subscription  to 
the  capital  stock,  or  the  reduction  of  the  amount 
of  capital  stock  below  the  full  amount  that  shall 
have  been  subscribed  thereto. 

Sec.  3.  Section  twenty  of  the  act  mentioned 
in  the  first  section  of  this  act  is  hereby  amended 
so  as  to  read  as  follows: 

Sec.  20.  If  at  any  meeting  so  called  a  sufficient 
number  of  votes  has  been  given  in  favor  of  in- 
creasing or  reducing  the  amount  of  capital  stock, 
a  certificate  of  the  proceedings,  showing  a  com- 
pliance with  these  provisions,  the  amount  of  the 
capital  actually  paid  in,  and  the  amount  to  which 
the  capital  stock  is  to  be  increased  or  reduced, 
shall  be  made  out,  signed,  and  verified  by  the  affi- 
davit of  the  chairman  and  secretary  of  the  meet- 
ing, certified  by  a  majority  of  the  directors,  and 
filed  as  required  by  the  second  section  of  this  act. 
When  so  filed  the  capital  stock  of  the  corpora- 
tion shall  be  increased  or  reduced  to  the  amount 
specified  in  the  certificate. 

Sec.  4.  This  act  shall  take  effect  from  and  after 
its  passage.     [Approved  February  21,  1872.] 

The  original  act,  of  which  this  is  an  amend- 
ment, is  incorporated  in  the  provisions  of  the  code 
relating  to  savings  and  loan  corporations. 


APPENDIX.  721 


An  Act  providing  for  the  dissolution  and  winding 
up  of  savings  banl^s,  trust  companies,  and 
banks  of  deposit,  and  providing  for  tlie  dispo- 
sition of  all  funds  deposited  therein  and  not 
claimed  within  five  years  after  such  banlvs 
have  ceased  to  do  business,  or  after  the  com- 
mencement of  proceedings  to  dissolve. 

[Approved  March  31,   1891;  Stats.  1891,  p.  271.] 

§  1.  Right  to  dissolve  savings  banks,   etc. 

§  2.  Dissolved  savings  bank  fund.  , 

§  3.  How  drawn  upon. 

§  4.  When    same    escheats. 

§  5.  Attorney  general  empowered  to  bring  actions. 

§  6.  Investment  of  funds. 

§  7.  Bonds  purchased. 

§  8.  To  sell  bonds  to  meet  payments. 

Section  1.  That  any  savings  bank  or  tru.st  com- 
pany or  bank  of  deposit  heretofore  created  or 
which  may  be  hereafter  created  shall  have  the 
right,  on  application  to  the  stockholders  or  mem- 
bers to  the  Superior  Court  of  the  county  wherein 
its  principal  place  of  business  is  situated,  to  dis- 
solve said  corporation  in  the  manner  provided  for 
in  title  six,  part  three,  of  the  Code  of  Civil  Pro- 
cedure. 

Sec.  2.  It  is  hereby  made  the  duty  of  every  per- 
son or  corporation  holding  funds  of  any  savings 
bank  or  trust  company  or  bank  of  deposit,  at  the 
end  of  five  years  from  and  after  such  bank  has 
ceased  to  receive  deposits  or  do  business,  to  pay 
the  same  into  the  State  treasury,  which  money 
shall  be  held  in  the  State  treasury  in  a  fund  which 
is  hereby  designated  as  "The  Dissolved  Savings 
Bank  Fund";  and  at  the  same  time  it  shall  be  the 
duty  of  such  person  or  corporation  to  furnish  to 
the  State  controller  a  list  of  the  names  of  all  de- 

Civ.   Code— 61 


722  APPENDIX. 

positors  to  wliom  mud  moneys  beloug  or  to  wliom 
said  bauk  owes  the  same. 

Sec.  o.  The  mouej'  in  said  "The  Dissolved  Sav- 
ings Banli  Fund"  may  be  drawn  out  on  the  war- 
rants of  the  State  controller,  issued  on  proofs  of 
ownership,  approved  and  allowed  by  the  State 
board  of  examiners. 

Sec.  4.  All  moni^ys  paid  into  the  said  "The  Dis- 
solved Savings  Bank  Fund"  uncalled  for  within 
five  years  after  being  paid  in  shall  escheat  to  the 
State,  and  thereafter  only  drawn  out  in  such  man- 
ner as  now  provided  for  hy  law  for  the  estates 
of  deceased  persons  escheated  to  this  State. 

Sec.  5.  That  any  person  or  corporation  failing 
to  comply  with  the  provisions  of  this  act  shall 
be  liable  to  the  State  of  California  for  the  amount 
of  money  so  retained  by  tliem  contrary  to  the  pro- 
visions of  the  first  four  sections  of  this  act;  and 
the  attorney  general  of  this  State  is  hereby  au- 
thorized, empowered,  and  directed  to  bring  action, 
in  the  name  of  the  people  of  the  State  of  Califor- 
nia, in  such  manner  and  upon  the  same  terms  as 
now  provided  for  escheated  estates,  to  recover 
judgment  for  said  money,  and  when  so  recovered, 
to  be  paid  into  the  State  treasury  and  held  subject 
to  the  provisions  of  this  act;  provided,  that  said 
fund  shall  be  liable  for  the  expense  of  the  recovery 
of  the  same,  to  be  paid  out  upon  demands  audited 
bv  the  State  board  of  examiners. 

Sec.  6.  Whenever  and  as  often  as  there  is  in  the 
State  treasury  to  the  credit  of  the  said  "The  Dis- 
solved Savings  Bank  Fund"  the  sum  of  ten  thou- 
sand dollars,  the  State  board  of  examiners  must 
invest  the  same  in  civil  ftinded  bonds  of  this  State, 
or  in  bonds  of  the  Ignited  States,  or  in  bonds  of  the 
several  cotmties  of  this  State;  the  investments  to 
be  made  in  such  manner  and  upon  such  terms  as 
the  board  shall  deem  for  the  best  interests  of  the 
said   "The   Dissolved   Savings  Bank  Fund";   pro- 


APPENDIX.  723 

vided,  that  no  bonds  of  any  counties  shall  be  pur- 
chased of  which  the  debt,  debts,  or  liabilities  at 
the  time  exceed  fifteen  per  cent,  of  the  assessed 
value  of  the  taxable  property  of  said  county. 

Sec.  7.  All  bonds  purchased  by  the  board  under 
the  provisions  of  this  act  must  be  delivered  to  the 
State  treasurer,  who  shall  l^eep  them  as  a  portion 
of  said  "The  Dissolved  Savings  Banli  Fund,"  the 
interest  upon  such  bonds  to  be  placed  by  him  to 
the  credit  of  said  fund. 

Sec.  8.  Whenever  the  moneys  on  hand  in  the 
State  treasury,  to  the  credit  of  the  said  "The  Dis- 
solved Savings  Bank  Fund"  is  not  sufficient  to 
pay  the  claims  allowed  by  the  State  board  of  ex- 
uniiners  against  said  fund,  it  shall  be  the  duty  of 
said  board  to  sell  such  bonds  belonging  to  said 
fund  as  they  may  deem  proper,  for  the  purpose  of 
providing  funds  for  the  payment  of  such  claims 
so  allowed  by  them. 

Sec.  9.  This  act  shall  talie  effect  from  and  after 
its  passage. 


BENEFIT  SOCIETIES. 

An  Act  relating  to  mutual  beneficial  and  relief 
associations. 
[Approved  March  28,  1874;  1873-4,  745.] 

§  1.  Mutual   beneficial    and    relief   associations. 

§  2.  How  formed. 

§  3.  Powers. 

§  4.  Idem. 

§  5.  By-laws. 

§  6.  Old  associations. 

Mutual  beneficial  and  relief  associations. 

Section  1.  Associations  may  be  formed  for  the 
purpose  of  paying  to  the  nominee  of  any  member 
a  sum  upon  the  death  of  said  member,  not  exceed- 
ing three  dollars  for  each  member  of  such  asso- 


724  APPENDIX. 

elation.    No  such  association  shall  exceed  in  num- 
ber one  thousand  persons. 
How  formed. 

Sec.  2.  Such  association  shall  be  formed  by  fil- 
ing a  verified  certificate  in  the  office  of  the  clerk 
of  the  county  in  which  the  principal  place  of  busi- 
ness shall  be  situated,  and  filing  a  like  certificate 
in  the  office  of  the  secretary  of  the  State;  such 
certificate  shall  state  the  general  objects  of  the 
association,  its  principal  place  of  business,  and 
the  names  of  the  officers  selected  to  hold  office  for 
the  first  three  months,  and  shall  be  signed  by  said 
officers,  and  verified  by  at  least  three  of  them. 
Powers. 

Sec.  3.  Said  associations,  upon  the  death  of 
each  member,  may  levy  an  assessment  upon  each 
member  living  at  the  time  of  the  death,  not  ex- 
ceeding three  dollars  for  each  member,  and  collect 
the  same,  and  pay  the  same  to  the  nominee  of 
such  deceased:  and  may  also  provide  the  payment 
of  such  annual  payments  of  members  as  may  be 
deemed  best.  Such  annual  assessment  upon  any 
one  member  not  to  be  raised  above  the  annual 
assessment  established  at  the  time  such  member 
joins  such  association. 
Same. 

Sec.  4.  Such  association,  by  its  name,  may  sue 
and  be  sued,  and  may  loan  such  funds  as  it  may 
have  on  hand,  and  may  own  sufficient  real  estate 
for  its  business  purposes,  and  such  other  real  es- 
tate as  it  may  be  necessary  to  purchase  on  fore- 
closure of  its  mortgages;  provided,  such  real  es- 
tate so  obtained  through  foreclosure  shall  be  sold 
and  conveyed  within  five  years  from  the  day  title 
is  obtained,  unless  the  Superior  Court  of  the 
proper  county  shall,  upon  petition  and  good  cause 
shown,  extend  the  time.  [Amendment  approved 
April  G.  18S0;  Amendments  1880.  2.5  (Ban.  ed.  128). 
Took  effect  immediately.] 


APPENDIX.  725 

By-laws. 

Sec.  5.  Such  association  may  make  such  by- 
laws, not  inconsistent  with  the  laws  of  this  State, 
as  may  be  necessary  for  its  goyernment,  and  for 
the  transaction  of  its  business,  and  shall  not  be 
subject  to  the  provisions  of  the  general  insurance 
laws. 
Old  associations. 

Sec.  6.  All  associations  heretofore  formed  for 
the  objects  contemplated  by  this  act,  and  now  in 
operation,  may  avail  themselves  of  its  provisions 
by  filing  the  certificate  provided  for  in  section  one: 
provided,  that  such  society  shall  not  have  greater 
membership  than  three  thousand. 

Sec.  7.    This  act  shall  take  effect  immediately. 


BOARDS  OF  TRADE:  See  post,  p.  730. 


BONDS. 

An  Act  to  facilitate  the  giving  of  bonds  required 
by  law. 

[Approved   March  12,   1SS5;   1885,   114.] 

§  1.    Incorporation  for  giving  bonds. 
§  2.    W'hen   corporation   not   accepted. 
§  3.     Duty   of   insurance   commissioner. 

Incorporations  for  giving  bonds. 

Section  1.  Whenever  any  person  who  now  or 
hereafter  may  be  required  or  permitted  by  law  to 
make,  execute,  and  give  a  bond  or  undertaking, 
with  one  or  more  sureties,  conditioned  for  the 
faithful  performance  of  any  duty,  or  for  the  doing 
or  not  doing  of  anything  in  said  bond  or  under- 
taking specified,  any  head  of  department,  board, 
court,  judge,  officer,  or  other  person  who  is  now  or 
shall  hereafter  be  required  to  approve  the  suffi- 


726  APPENDIX. 

cieney  of  any  sucli  boud  or  imdertakiug,  or  the 
sureties  thereon,  may  accept  as  sole  and  suthcient 
suretj'  on  such  boud  or  undertaking,  any  corpora- 
tion incorporated  under  the  hiws  of  any  State  of 
The  United  States  for  the  purpose  of  making  or 
guaranteeing  bonds  and  undertakings  required  by 
law,  and  which  shall  have  complied  with  all  the 
requirements  of  the  laws  of  this  State  regulating 
the  admission  of  such  corporation  to  transact  such 
business  in  this  State;  and  all  such  corporations 
are  hereby  vested  with  full  power  and  authority 
to  make  and  guarantee  such  bonds  and  undertak- 
ings, and  shall  be  subject  to  all  the  liabilities  ami 
entitled  to  all  the  rights  of  natural  persons  sure- 
ties. 
When  corporation  not  accepted. 

Sec.  2.  It  is  further  provided  that  the  guaranty 
of  any  such  company  shall  not  be  accepted  by 
heads  of  departments  or  others,  as  provided  in 
section  one  of  this  act,  whenever  its  liabilities 
shall  exceed  its  assets,  as  ascertained  in  the  man- 
ner provided  in  section  three  of  this  act. 
Duty  of  insurance  commissioner. 

Sec.  3.  Whenever  the  liabilities  of  any  such 
company  shall  exceed  its  assets,  the  insurance 
commissioner  shall  require  the  deficiency  to  be 
paid  up  within  sixty  days,  and  if  it  is  not  so  paid 
up,  then  he  shall  issue  a  certificate  showing  the 
extent  of  such  deficiency,  and  he  shall  publish  the 
same  once  a  week  for  three  weeks  in  a  daily  San 
Francisco  paper,  and  thenceforth,  and  until  such 
deficiency  is  paid  up.  such  company  shall  not  do 
business  under  the  provisions  of  this  act.  And  in 
estimating  the  condition  of  any  such  company, 
under  the  provisions  of  this  act,  the  commissioner 
shall  allow  as  assets  only  such  as  are  author- 
ized under  existing  laws  at  the  time,  and  shall 
charge  as  liabilities,  in  addition  to  eighty  per  cent. 
of  the  capital  stock,  all  outstanding  indebtedness 


APPENDIX.  727 

I'i  the  compauy.  and  a  premium  reserve  equal  to 
lilty  per  eeutum  of  the  premiums  charged  by  said 
company  on  all  risks  then  in  force.  Nothing  herein 
contained  shall  apply  to  bonds  given  in  criminal 
cases. 
»Sec.  4.    This  act  shall  take  effect  immediately. 


BUILDING  AND  LOAN  ASSOCIATIONS. 

An  Act  creating  a  board  of  commissioners  of  the 
building  and  loan  associations  and  prescribing 
their  duties  and  powers. 

[Approved  March  23,   1893;   Stats.   1893,   p.   229.] 

§    1.  Board  of  commissioners. 

§    2.  Salaries. 

§    3.  Office,  rent,  stationery,  etc. 

§    4.  Bond. 

§    5.  Duties  of— Report. 

§    6.  Visiting  associations. 

§    7.  Duties  of  associations. 

§    8.  Powers   of. 

§    9.  Duty  of  attorney  general— Receivers. 

§  10.  Failure  to  report  to  attorney  general. 

§  11.  Scliedule  of  property. 

§  12.  Examining  accounts   of  receivers. 

§  13.  Investigation   of  affairs. 

§  14.  Violation   laws   relating  to   corporations. 

§  15.  Associations  to  pay  assessment. 

§  16.  How  collections  maj^  be  enforced. 

§  17.  Licenses. 

§  18.  Report  to   commissioners. 

§  19.  Withdrawal    of    stockholders. 

§  20.  "Building   and    loan    association."    what   includes. 

Section  1.  All  building  and  loan  associations 
heretofore  or  hereafter  incorporated  under  the 
laws  of  this  State,  or  any  other  State  or  territory, 
or  those  of  any  foreign  country,  and  doing  busi- 
ness in  this  State,  shall  be  subject  to  the  exam- 
ination and  supervision  of  a  board  of  commis- 
sioners of  loan  associations,  which  board  shall 
consist  of  two  commissioners,  each  of  whom  shall 


728  APPENDIX. 

be  an  expert  of  accounts,  and  shall  be  appointed 
by  the  governor,  within  thirty  days  after  the 
passage  of  this  act,  to  hold  office  for  the  period 
of  four  years,  and  until  their  successors  are  ap- 
pointed and  qualified. 

Sec.  2.  The  commissioners  shall  each  receive  a 
salary  of  twenty-four  hundred  dollars  per  annum 
and  necessary  traveling  expenses,  not  to  exceed 
for  the  two  commissioners  and  their  secretary,  the 
sum  of  seven  hundred  dollars  per  annum.  Said 
commissioners  are  hereby  authorized  to  appoint 
a  secretary  at  a  salary  not  to  exceed  twelve  hun- 
dred dollars  per  annum,  who  shall  have  power  to 
examine  the  books  and  affairs  of  the  associations, 
the  same  as  the  commissioners.  All  said  salaries 
and  traveling  expenses  shall  be  audited  by  the 
State  controller  and  paid  in  the  same  manner  as 
the  salaries  of  other  State  officers.  [Amend- 
ment approved  March  26,  1895;  Stats.  1895,  p.  103.] 

Sec.  3.  The  commissioners  shall  have  their  of- 
fice in  San  Francisco,  which  office  shall  be  kept 
open  for  business  every  business  day,  and  during 
such  hours  as  are  commonly  observed  by 
the  banks  of  that  city  as  banking  hours.  They 
shall  procure  rooms  for  their  office  at  a  monthly 
rental  not  exceeding  forty  dollars.  They  may 
also  provide  fuel,  stationery,  printing,  and  other 
necessary  conveniences  connected  with  their  of- 
fice, not  to  exceed  an  aggregate  cost  of  four  hun- 
dred dollars  per  annum.  All  expenses  authorized 
in  this  section  shall  be  audited  and  paid  in  the 
same  manner  as  the  salary  of  the  commissioners. 
[Amendment  approved  March  26,  1895;  Stats. 
1895,  p.  103.] 

Sec.  4.  The  commissioners,  before  entering  up- 
on the  duties  of  their  office,  must  each  execute  an 
official  bond  in  the  sum  of  five  thousand  dollars, 
nnd  take  the  oath  of  of?iCe  as  prescribed  by  the 
Political  Code  for  State  officers  in  general.     The 


APPENDIX.  729 

secretary  appointed  by  said  commissioners  shall 
execute  a  boud  in  the  sum  of  two  thousand  dol- 
lars, and  take  the  oath  of  office  as  prescribed  by 
said  Political  Code.  [Amendment  approved  March 
20,  1895;  Stats.  1895,  p.  103.] 

Sec.  5.  The  duties  of  the  commissioners  of 
building  and  loan  associations  shall  be  to  furnish 
all  corporations  legally  authorized  to  transact  the 
business  of  a  building  and  loan  association  within 
This  State  a  license  authorizing  them  to  transact 
the  business  of  a  building  and  loan  association 
for  one  year  from  the  date  of  said  license;  to  re- 
ceive and  place  on  file  in  their  office  the  annual 
reports  required  to  be  made  by  building  and  loan 
associations  by  this  act;  to  supply  each  associa- 
tion with  blanli  forms  and  such  statements  as  the 
commissioners  may  require;  to  make,  on  or  before 
the  first  day  of  October  of  each  year,  a  tabulated 
report  to  the  governor  of  this  State,  showing  the 
condition  of  all  institutions  examined  by  them. 
Avith  such  recommendations  as  they  may  deem 
proper,  accompanied  by  a  detailed  statement,  veri- 
fied by  oath,  of  all  moneys  received  and  expended 
by  them  since  their  last  report.  [Amendment  ap- 
proved March  20,  1895;  Stats.  1895.  p.  10.3.] 

Sec.  6,  The  commissioners  shall  visit,  once  in 
every  year,  and  as  much  oftener  as  they  may 
rleem  expedient,  every  building  and  loan  associa- 
tion doing  business  in  this  State.  At  such  visits, 
they  shall  have  free  access  to  the  vaults,  books, 
and  papers,  and  shall  thoroughly  inspect  and  ex- 
amine all  the  affairs  of  each  of  said  corporations, 
and  make  such  inquiries  ns  may  be  necessary  to 
ascertain  its  condition  and  ability  to  fulfill  all  Its 
f'ngagements,  and  whether  it  has  complied  with 
the  provisions  of  law  governing  such  associations: 
they  shall  preserve  in  a  permanent  form  a  full 
record  of  their  proceedings,  including  a  statement 
of  the  condition  of  each  of     said     corporations. 


730  APPENDIX. 

which  shall  be  open  to  the  iuspectiou  of  the  public 
during  their  office  hours. 

Sec.  7.  To  facilitate  the  examinations  of  the 
commissioners,  as  specified  in  the  foregoing  sec- 
tion, every  association  shall  keep  a  book  of  rec- 
ords, written  in  ink,  showing  the  appraised  values 
of  the  real  estate  security  held  in  connection  with 
each  loan,  and  signed  in  each  case  by  the  ap- 
praiser or  officer  or  committee  of  the  association 
making  such  estimate  value.  The  commissioners 
shall  have  power  to  order  a  revaluation  of  the  se- 
curities of  any  building  and  loan  association  when 
they  deem  it  necessary,  and  may,  for  that  purpose, 
appoint  local  appraisers  at  the  expense  of  such 
association,  the  total  expense  of  such  appraise- 
ment not  to  exceed  two  dollars  and  fifty  cents 
for  each  property  examined  and  appraised.  Each 
appraiser  shall  make  a  sworn  report  to  the  com- 
missioners of  the  appraised  values  of  all  property 
examined.  [Amendment  approved  March  20, 
1895;  Stats.  1895,  p.  103.] 

Sec.  8.  Either  of  the  commissioners  may  sum- 
mon all  trustees,  officers,  or  agents  of  any  such 
corporation,  and  such  other  witnesses  as  he  thinks 
proper,  in  relation  to  the  affairs,  transactions,  and 
condition  of  the  corporation,  and  for  that  purpose 
may  administer  oaths;  and  whoever  refuses,  with- 
out justifiable  cause,  to  appear  and  testify,  when 
thereto  required,  or  obstructs  a  commissioner  in 
the  discharge  of  his  dtity,  shall  be  punished  by  a 
fine  not  exceeding  one  thousand  dollars,  or  im- 
prisonment not  exceeding  one  year,  or  by  both 
such  fine  and  imprisonment. 

Sec.  9.  If  the  commissioners,  upon  examina- 
tion of  any  corporation  under  their  supervision, 
find  that  such  corporation  has  been  violating  the 
provisions  of  law  governing  such  associations,  or 
is  conducting  its  business  in  an  unsafe  manner, 
such   as  to   render  its  further  proceeding   hazar- 


APPENDIX.  731 

dous  to  tbe  public  or  to  those  having  funds  in  its 
'•ustody,  they  shall  notify  the  attorney  general  of 
such  facts,  and  the  attorney  general,  in  his  discre- 
tion, maj^  apply  to  the  judge  of  the  Superior  Court 
of  the  county  in  which  such  corporation  is  doing 
I'usiness  to  issue  an  injunction  restraining  such 
'jorporation,  in  whole  or  in  part,  from  further  pro- 
ceeding with  its  business  until  a  hearing  can  be 
liad.  Such  judge  may,  in  such  application,  issue 
such  injunction,  and,  after  a  full  hearing,  may 
dissolve  or  modify  it,  or  mal^e  it  perpetual,  and 
may  make  such  orders  and  decrees,  according  to 
The  course  of  proceedings  in  eqtiity,  to  restrain  or 
]>rohibit  the  further  prosecution  of  the  business  of 
the  corporation, as  maybe  needful  in  the  premises; 
and  may  appoint  one  or  more  receivers  to  take 
possession  of  its  property  and  effects,  subject  to 
-iich  direc lions  as  may  from  time  to  time  be  pre- 
'  L'ibed  by  the  court. 

Sec.  10.  And  if  either  of  the  commissioners, 
having  knowledge  of  the  insolvent  condition,  or 
any  violation  of  law,  or  unsafe  practice  of  any 
association  under  their  stipervision,  such  as  ren- 
ders, in  their  opinion,  the  conduct  of  its  business 
hazardous  to  its  shareholders  or  depositors,  and 
-hall  fail  to  report  the  same  in  writing  to  the  at- 
torney general,  as  required  by  this  act,  then  such 
'ommissioner,  on  conviction  thereof,  shall  be  pun- 
ished by  a  fine  of  not  less  than  five  thousand  dol- 
lars nor  more  than  ten  thousand  dollars,  or  by  im- 
prisonment in  the  county  jail  not  less  than  one 
year  nor  more  than  two  years,  or  by  both  such 
fine  and  imprisonment;  and  his  office  shall  be  de- 
•"■lared  vacant  by  the  governor,  and  a  successor 
appointed  to  fill  his  unexpired  term. 

Sec.  11.  When  receivers  are  so  appointed,  the 
secretary  of  the  corporation  shall  make  a  schedule 
of  all  its  property,  and  its  secretary,  board  of  in- 
vestment, and  other  officers  transferring  its  prop- 


732  APPENDIX. 

eity  to  the  receivers,  shall  make  oath  that  said 
schedule  sets  forth  all  the  property  which  the  cor- 
poration owns,  or  is  entitled  to.  The  secretary  • 
shall  deliver  said  schedule  to  the  receivers,  and  a 
copy  thereof  to  the  commissioners,  who  may  at 
any  time  examine,  under  oath,  such  secretary,, 
board  of  investment,  or  other  officers,  in  order  to 
determine  whether  or  not  all  the  property  which 
the  corporation  owns,  or  is  entitled  to,  has  been 
transferred  to  the  receivers. 

Sec.  12.  The  commissioners,  or  one  of  them, 
shall,  at  least  once  in  each  year,  and  as  much 
oftener  as  they  may  deem  expedient,  examine  the 
accounts  and  doings  of  all  such  receivers,  and 
shall  carefully  examine  and  report  upon  all  ac- 
counts and  reports  of  receivers  made  to  the  proper 
court  and  referred  to  the  commissioners  by  the 
court,  and,  for  the  purposes  of  this  section,  shall 
have  free  access  to  the  books  and  papers  relating 
to  the  transactions  of  such  receivers,  and  may  ex- 
amine them  under  oath  relative  to  such  trans- 
actions. 

Sec.  13.  Upon  the  certificate,  under  oath,  of  any 
five  or  more  officers,  trustees,  creditors,  sharehold- 
ers, or  depositors  of  any  such  corporation,  setting 
forth  their  interest  and  the  reasons  for  making 
such  examination,  directed  to  the  commissioners, 
and  requesting  them  to  examine  such  corporation, 
they  shall  forthwith  make  a  full  investigation  of 
its  affairs,  in  the  manner  provided. 

Sec.  14.  The  commissioners,  if  in  their  opinion 
any  such  corporation  or  its  officers  or  trustees 
have  violated  any  law  in  relation  to  such  corpora- 
tions, shall  forthwith  report  the  same,  with  such 
remarks  as  they  deem  expedient,  to  the  attorney 
general,  who  shall  forthwith  institute  a  prosecu- 
tion for  such  violation,  in  behalf  of  the  people  of 
the  State. 

Sec.  15.    To  meet  the  expenses  provided  by  this 


APPENDIX.  733 

Act,  every  building  aud  loan  association,  or  corpo- 
ration or  association  doing  business  on  the  build- 
ing and  loan  plan,  shall  pay,  in  advance,  to  the 
commissioners,  its  pro  rata  amount  of  such  ex- 
penses, to  be  determined  by  an  assessment  levied 
on  the  shares  of  each  of  such  associations  in  force 
on  the  thirty-first  day  of  December,  eighteen  hun- 
dred and  ninety-two,  pro  rata,  according  to  the  par 
value  of  such  shares;  and  annually  thereafter  the 
said  commissioners  shall  levy,  in  a  like  manner, 
and  collect  in  advance,  a  lil^e  assessment  on  the 
shares  of  all  such  associations  in  force  as  per  re- 
port, herein  provided  for,  to  be  made  to  said  com- 
missioners, of  the  condition  at  the  close  of  business 
(m  December  thirty-first  of  each  year;  provided, 
however,  that  no  association  shall  pay  less  than 
ten  dollars  per  annum;  and  all  associations  here- 
after organized  shall  each  pay  to  the  commission- 
ers for  their  licenses  not  less  than  one  dollar  per 
month  for  the  term  expiring  December  thirty-first 
succeeding,  dating  from  the  time  of  application  for 
license.  [Amendment  approved  March  2G,  1895; 
Stats.  1895,  p.  103.] 

Sec.  16.  The  collection  of  all  moneys  assessed, 
as  herein  provided,  for  the  annual  expenses,  or  for- 
feitable as  fines  for  failure  to  mal^e  reports  as 
herein  specified,  and  due  from  any  corporation  or 
association  coming  within  the  provisions  of  this 
act,  may  be  enforced  by  an  action  instituted  in 
any  court  of  competent  jurisdiction,  and  all 
moneys  collected  or  received  by  the  said  commis- 
sioners under  this  act  shall  be  deposited  with  the 
State  treasurer,  to  the  credit  of  a  fund  to  be 
Ivnown  and  designated  as  the  "Building  and  Loan 
Association  Inspection  Fund." 

Sec.  IT.  No  association  shall  transact  business 
in  this  State  without  first  procuring  from  the  com- 
missioners of  building  and  loan  associations  a  cer- 
tificate of  authoritj'  or  license  to  do  so.  To  pro- 
Civ.  Code— 62 


734  APPENDIX. 

cure  such  authority  it  must  file  with  the  said  com- 
missioners a  certified  copy  of  its  articles  of  incor- 
poration, constitution,  and  by-laws,  and  all  other 
printed  rules  and  regulations  relating  to  its  meth- 
ods of  conducting  business,  and  of  all  subsequent 
amendments  or  changes  thereto,  and  otherwise 
comply  with  all  requirements  of  law.  No  associa- 
tion, after  the  expiration  of  the  term  for  which  a 
license  has  been  granted  to  it  by  the  commission- 
ers of  building  and  loan  associations,  shall  con- 
tinue to  transact  the  business  of  a  building  and 
loan  association  without  first  procuring  from  said 
commissioners  a  renewal  of  such  license  on  the 
terms  provided  for  in  this  Act;  and  any  corpora- 
tion violating  this  provision  shall  forfeit  the  sum 
of  ten  dollars  per  day  during  the  continuance  of 
the  offense;  and  any  violation  of  this  section  by 
any  officer  of  such  association  shall  be  a  misde- 
meanor. The  commissioners  are  authorized  and 
empowered  to  revoke  the  license  of  any  associa- 
tion under  their  supervision,  the  solvency  whereof 
is  imperiled  by  losses  or  irregularities;  and  the 
commissioners  immediately  upon  revoking  such  li- 
cense shall  report  the  facts  to  the  attorney  gen- 
eral, who  shall  thereupon  take  such  proceedings 
as  is  provided  by  section  nine  of  this  Act, 
[Amendment  approved  March  20.  1S9.">:  Stats. 
1895,  p,  103,] 

Sec,  18,  Every  building  and  loan  association 
doing  business  in  this  State  shall,  once  in  every 
year,  to-wit,  within  thirty  days  after  the 
expiration  of  its  annual  fiscal  term,  make  a 
report,  in  writing,  to  the  Commissioners  of 
Building  and  Loan  Associations,  verified  by 
the  oath  of  its  president  and  secretary  show- 
ing accurately  the  financial  condition  of  such 
association  at  the  close  of  said  term.  The  report 
shall  be  in  such  form  as  the  Commissioners  shall 
l>rescribe.  upon  blanks  by  thorn  furnished  for  that 


APPENDIX.  785 

purpose,  and  shall  specify  the  following  particu- 
lars, namely:  Name  of  the  corporation,  place 
where  located,  authorized  capital  stock,  amount  of 
stock  paid  in,  the  names  of  the  directors,  the 
amount  of  capital  stock  held  by  each,  the  amount 
due  to  shareholders,  the  amount  and  character  of 
all  other  liabilities,  cash  on  hand,  and  the  number 
and  value  of  shares  in  each  and  every  series  of 
stock  issued  by  the  association.  All  money  re- 
ceived or  disbursed  by  such  association  shall  he 
duly  accounted  for.  Any  association  failing  to 
lile  the  annual  report  within  the  time  specified 
herein,  shall  be  subject  to  a  penalty  of  ten  dollars 
per  day  for  each  and  every  day  such  report  shall 
be  delayed  or  withheld.  [Amendment  approved 
March  26,  1895;  Stats.  1895,  103.] 

Sec.  19.  Stockholders  desiring  to  withdraw 
from  any  association,  or  to  surrender  a  part  or  all 
of  their  stoclv,  shall  have  power  to  do  so  by  giving 
thirty  days'  notice  in  writing  of  such  intention  to 
withdraw.  On  the  expiration  of  such  notice,  the 
stockholder  so  withdraAving  shall  be  entitled  to 
receive  the  full  amount  paid  in  by  him  or  her,  to- 
gether with  such  proportion  of  the  earnings  there- 
on as  the  by-laAvs  may  provide,  or  as  may  have 
been  fixed  by  the  board  of  directors;  provided, 
that  not  more  than  one-half  of  the  monthly  re- 
ceipts in  any  one  month  shall  be  applied  to  with- 
drawals for  that  month,  without  the  consent  of 
the  board  of  directors,  and  no  shareholder  shall 
be  permitted  to  withdraw,  whose  stock  is  pledged 
as  security  to  the  association  for  a  loan  until  such 
loan  is  fully  paid.  Such  withdrawals  shall  be 
paid  in  succession,  in  the  order  that  the  notices 
are  given. 

Sec.  20.  The  name  "Building  and  Loan  Associ- 
ation," and  all  reference  to  the  same  as  "associa- 
tion" or  "associations,"  as  used  in  this  act,  shall 
include  all  corporations,  societies,  or  organizations. 


736  APPENDIX. 

investment  companies,  or  associations,  whether  or- 
ganized in  this  State  or  represented  by  agents, 
doing  a  savings  and  loan  or  investment  business, 
and  which  are  not  under  the  direct  supervision  of 
the  Banlj:  Commissioners  or  the  Insurance  Com- 
missioner, and  whether  issuing  certificates  of 
stock  which  mature  at  a  time  fixed  in  advance  or 
not,  and  shall  also  include  any  association  or  com- 
pany which  is  based  on  the  plan  of  building  and 
loan  associations,  and  which  contains  features 
similar  to  such  associations;  and  said  Commis- 
sioners are  hereby  vested  with  the  power  of  de- 
termining whether  such  association  or  associations 
contain  such  features  as  are  based  on  plans  simi- 
lar to  those  of  building  andjoan  associations,  and 
whether  they  properly  come  within  the  purview 
of  this  act.  [Amendment  approved  March  26, 
1895;  Stats.  1895,  103.] 

Sec.  21.  All  acts  or  parts  of  acts  in  conflict  with 
the  provisions  of  this  act  are  hereby  repealed. 

Sec.  22.  This  act  shall  take  effect  and  be  in 
force  from  and  after  its  passage. 


CEMETERIES. 

Act  authorizing  incorporation  of  rural  cemetery 
corporations:  See  act  of  April  28,  1859;  Stats.  1859. 
p.  267;  and  Amendments  1863-4,  p.  12;  1891,  p.  264. 


APPENDIX.  737 


CHAMBERS  OF  COMMERCE. 

A.n  Act  to  provide  for  the  formation  of  cb ambers 
of  commerce,  boards  of  trade,  mechanic  insti- 
tutes, and  other  liindred  protective  associa- 
tions. 

[Approved  March  31,  1866;  1865-6,  469.] 

§  1.  Corporations   may  be   formed. 

§  2.  Certificate  of  incorporation. 

§  3.  Certified  copy  shall  be   evidence. 

§  4.  Corporations,    rights    and    powers. 

§  5.  Stock  and  certificates. 

§  6.  Trustees,  etc. 

§  7.  Real   and  personal   estate. 

§  8.  By-laws. 

§  9.  Meetings. 

§  10.  Power  to  levy  assessments. 

§  11.  Existing  corporations. 

Corporations  may  be  formed. 

Section  1.  That  corporations  for  the  formation 
and  organization  of  chambers  of  commerce,  boards 
of  trade,  mechanic  institutes,  and  other  associa- 
tions for  the  extension  and  promotion  of  trade  and 
commerce,  or  the  advancement,  protection,  and 
improvement  of  tlie  mechanic  arts  and  sciences, 
may  be  formed  and  organized  according  to  the 
provisions  of  this  act,  and  such  corporations  and 
the  members  thereof  shall  be  subject  to  the  liabil- 
ities herein  imposed,  and  to  none  other. 
Certificate  of  incorporation. 

Sec.  2.  Any  twenty  or  more  persons  who  may 
desire  to  form  a  corporation  for  either  of  the  pur- 
poses specified  in  the  preceding  section  shall  make, 
sign,  and  acknowledge,  before  some  officer  conipe- 
petent  to  take  acknowledgment  of  deeds,  and  file 
in  the  otlice  of  the  county  clerk  of  the  county  in 
which  the  principal  place  of  business  of  the  com- 
pany is   intended  to   be  located,   and   a  certified 


738  APPENDIX. 

copy  thereof  in  the  office  of  the  Secretary  of  State, 
a  certificate  iu  writing,  in  which  shall  be  stated 
the  corporate  name  of  the  corporation,  the  object 
for  which  the  corporation  shall  be  formed,  the 
time  of  its  existence,  not  to  exceed  fifty  years, 
and  the  name  of  the  city  or  town,  and  county,  in 
which  the  principal  place  of  business  of  the  cor- 
poration is  to  be  located. 
Certified  copy  shall  be  evidence. 

Sec.  3.  A  copj^  of  any  certificate  of  incorpora- 
tion filed  in  pursuance  of  this  act,  and  certified 
by  the  County  Cleric:  of  the  county  in  which  it  is 
filed,  or  his  deputy,  or  by  the  Secretary  of  State, 
shall  be  received  in  all  courts,  actions,  proceed- 
ings and  places,  as  presumptive  evidence  of  the 
facts  therein  stated. 
Corporation — liights  and  powers. 

Sec.  4.  When  the  certificate  provided  for  in  sec- 
tion two  of  this  act  shall  have  been  filed  as  there- 
in provided,  the  persons  who  shall  have  signed 
and  aclinowledged  the  same,  and  such  persons  as 
shall  thereafter  become  their  associates  or  suc- 
cessors, shall  be  a  body  politic  and  corporate,  and 
by  their  corporate  name  have  succession  for  the 
period  limited  and  power: 

1.  To  sue  and  be  sued  iu  any  court; 

2.  To  malie  and  use  a  common  seal,  and  to  alter 
the  same  at  pleasure; 

3.  To  lease,  purchase,  hold,  sell,  mortgage,  con- 
vey in  trust,  convey,  release  from  trust  or  mort- 
gage, such  real  and  personal  estate  as  hereinafter 
provided  in  this  act; 

4.  To  elect  or  appoint  such  officers,  agents,  and 
servants  as  the  business  of  the  corporation  shall 
require; 

5.  To  make  by-laws,  not  inconsistent  with  the 
laws  of  this  State,  providing  for  the  organization 
of  the  corporation  and  the  management  of  its  af- 
fairs. 


APPENDIX.  739 

Stock  and  certificates. 

Sec.  5.  Corporations  formed  under  this  act  may 
have  a  capital  stocli,  and  may  issue  certificates  to 
represent  shares  of  such  capital  stocl^;  provided, 
that  the  certificate  directed  in  the  second  section 
of  this  act  to  be  executed  and  tiled  shall  contain 
a  statement  of  the  amount  of  such  capital  stock 
and  the  number  of  shares  into  which  it  is  divided; 
and  provided,  further,  that  the  rights  and  privi- 
leges to  be  accorded  to  stockholders,  as  distinct 
from  those  to  be  accorded  to  members  at  large  of 
the  corporation,  and  the  obligations  to  be  imposed 
upon  stockholders  in  the  same  relation,  shall  be 
fixed  and  established  in  the  by-laws  of  each  of 
such  corporations. 
Trustees,  etc. 

Sec.  G.  Corporations  formed  under  this  act  may 
confer  upon  a  board  of  trustees  or  directors,  or 
upon  a  body  to  be  styled  the  executive  committee 
of  the  corporation,  the  right  to  exercise  all  or  any 
portion  of  the  corporate  powers  of  the  corporation; 
provided,  that  the  certificate  directed  by  the  sec- 
ond section  of  this  act  to  be  executed  and  filed  in 
those  cases  in  which  the  right  to  exercise  the  cor- 
porate powers  is  confined  to  a  board  of  trustees  or 
directors,  or  to  a  body  to  be  styled  the  executive 
committee  of  the  corporation,  shall  state  the  fact, 
and  also  whether  the  right  is  limited  or  otherwise: 
and  in  such  corporations  the  said  certificate  shall 
also  state  the  number  of  such  trustees  or  directors. 
or  committee,  and  the  names  of  those  who  shall 
have  been  selected  to  manage  the  affairs  of  the 
corporations  for  the  first  six  months. 
Real  and  personal  estate. 

Sec.  7.  Corporations  formed  under  the  provi- 
sions of  this  act  shall  be  capable  in  law  to  lease, 
purchase,  have,  hold,  use,  take  possession  of.  and 
enjoy,  in  fee  simple  or  otherwise,  any  personal 
or  real  estate  within  this  State  necessary  for  the 
uses  and  purposes  of  such   corporation,   and  the 


740  APPENDIX. 

same  to  sell,  lease,  deed  in  trust,  alien,  and  dis- 
pose of  at  their  pleasure.  All  real  estate  owned 
by  tlie  corporation  shall  be  held  in  the  name  of 
the  same,  and  al  conveyances  made  by  such  corpo- 
ration shall  be  signed  by  the  president  and  secre- 
tary, and  attested  by  the  corporate  seal;  provided, 
that  no  corporation  formed  under  this  act  shall 
engage  in  any  mercantile,  commercial,  or  mechani- 
cal business.  [Amendment  approved  March  10, 
1S85;  Statutes  and  Amendments  1885,  7G;  took  ef- 
fect from  passage;  repealed  conflicting  acts.] 

Act  to  defective  acknowledgments  taken    under 
this    act:  See    ante.  Appendix,  title    Acknowledg- 
ments. 
By-laws. 

Sec.  8.  The  by-laws  of  all  corporations  formed 
under  the  provisions  of  this  act  without  capital 
stock  shall  prescribe  how  members  of  the  corpo- 
ration shall  be  admitted,  and  how  expelled,  and 
how  officers,  agents,  and  servants  shall  be  elected 
or  appointed;  and  such  provisions  in  the  by-laws 
of  any  such  corporation  shall  have  full  force  and 
effect  as  between  private  parties  and  said  corpo- 
ration. 
Meetings. 

Sec.  9.  Corporations  formed  under  the  provi- 
sions of  this  act  shall  determine  by  their  by-laws 
the  manner  of  calling  and  conducting  their  meet- 
ings, the  number  of  members  that  shall  constitute 
a  quorum,  the  manner  of  levying  and  collecting 
assessments,  the  officers  of  the  same,  and  the  man- 
ner of  their  election  or  appointment,  and  their 
tenure  of  office;  and  may  prescribe  suitable  pen- 
alties for  the  violation  of  their  by-laws,  not  ex- 
ceeding in  any  case  one  hundred  dollars  for  any 
one  offense. 
Power  to  levy  assessments. 

Sec.  10.    Corporations  formed  under  the  provi- 
sions of  this  act  having  no  board  of  trustees,  or 


I 


APPENDIX.  741 

directors,  or  exec-utive  committee,  shall  have  pow- 
er to  levy  aud  collect  from  the  members  thereof, 
for  the  purpose  of  paying  the  proper  and  legal  ex- 
penses of  such  corporation,  assessments  in  the 
manner  which  may  be  prescribed  by  the  by-laws 
of  such  corporation,  and  not  otherwise. 
Existing  corporations  may  tal^e  benefit  of  this  act. 

Sec.  11.  Any  existing  corporation,  association, 
or  institution  formed  for  either  of  the  purposes 
contemplated  by  this  act,  may,  by  a  vote  of  a  ma- 
jority of  the  members  voting  at  a  meeting  called 
specially  for  the  purpose,  become  entitled  to  the 
benefit  of  this  act  on  filing  the  certificate  required 
by  this  act;  provided,  a  notice  of  the  meeting  and 
its  object  shall  be  published  in  a  paper  of  general 
circulation  in  the  county  in  which  the  principal 
place  of  business  of  such  corporation,  association, 
or  institution  is  located,  for  at  least  ten  days  pre- 
vious to  the  day  on  which  such  meeting  is  to  be 
held;  and  provided  further,  that  the  certificate 
herein  provided  to  be  filed  shall  be  signed  and  ac- 
linowledged  by  at  least  five  of  the  members  of 
such  corporation,  association,  or  institution,  and 
contain  a  list  of  the  members  who  desire  to  be- 
come members  of  the  corporation.  And  upon  the 
filing  of  such  certificate  as  provided  by  this  act, 
the  persons  signing  and  acknowledging  the  same, 
and  those  named  therein,  and  such  persons  as 
shall  thereafter  become  their  associates  or  suc- 
cessors, shall  be  a  body  politic  and  corporate,  with 
all  the  powers  and  privileges  conferred  by  this  act. 
and  shall  thereupon  succeed  and  become  entitled 
to  all  the  rights,  franchises,  and  property  of  such 
corporation,  association,  or  institution. 
Effect. 

Sec.  12.  This  act  shall  be  in  force  from  and 
after  its  passage;  and  all  corporations  formed 
under  it  are  hereby  exempted  from  the  operation 


742  APPENDIX. 

of  all  laws  and  parts  of  laws  iucousisteut  with  its 
provisions. 

Section  7  of  tlie  above  act  contained  a  proviso 
originally  limiting  the  amount  of  realty  that  could 
be  held  by  incorporations  under  this  statute  to 
two  hundred  and  fifty  thousand  dollars.  This  sec- 
tion was  amended  in  1868  by  an  act  approved  Jan- 
uary 14,  1868,  enlarging  the  amount  to  three  hun- 
dred and  fifty  thousand  dollars.  The  amendment 
of  1885  removes  the  limit  altogether. 


OO-OPERATIVE  ASSOCIATIONS. 

An  Act  to  provide    for  incorporation,    operation, 
and  management  of  co-operative  associations. 

[Approved  March  27,  1895;  Stats.  1895,  221.] 

§    1.  How  formed. 

§    2.  Rights  and   liabilities   of  members. 

§    3.  Articles    of   association. 

§    4.  By-laws,  meetings,  elections. 

§    5.  By-laws  to  be  recorded. 

§    6.  Property  is  subject  to  execution. 

§    7.  Business  may  be  changed. 

§    8.  Profits,   how   divided. 

§    9.  Powers  of  associations. 

§  10.  Associations  may  be  consolidated. 

§  11.  Associations  may  be  dissolved. 

§  12.  Rights  of  attorney  general  to  bring  suit. 

§  13.  Act  to  be  liberally  construed. 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  It  shall  be  lawful  for  five  or  more 
persons  to  form  a  co-operative  association  for  the 
purpose  of  transacting  any  lawful  business.  Such 
associations  shall  not  have  or  issue  any  capital 
stock,  but  shall  issue  membership  certificates  to 
each  member  thereof,  and  such  membership  cer- 


I 


APPENDIX.  743 

tificates  cannot  be  assigned  so  that  the  transferee 
thereof  can  by  such  transfer  become  a  member  of 
the  association  except  by  the  resolution  of  the 
board  of  directors  of  the  association.  But  by  the 
resolution  of  consent  of  the  board  of  directors, 
such  certificates  may  be  transferred,  so  that  the 
transferee  may  become  a  member  in  lieu  of  the 
last  former  holder  thereof. 

Sec.  2.  In  such  association  the  rights  and  in- 
terest of  all  members  shall  be  equal,  and  no  mem- 
ber can  have  or  acquire  a  greater  interest  therein 
than  any  other  member  has.  At  every  election 
held  pursuant  to  the  by-laws  each  member  shall 
be  entitled  to  cast  one  vote  and  no  more.  All  per- 
sons above  the  age  of  eighteen  years,  regardless  of 
sex,  shall  be  eligible  to  membership,  if  otherwise 
(lualified  and  elected  as  the  by-laws  may  provide. 
The  by-laws  shall  provide  for  the  amount  of  the 
indebtedness  which  such  association  may  incur. 
And  no  member  shall  be  responsible  individually, 
or  personally  liable,  for  any  of  the  debts  or  lia- 
bilities of  the  association  in  excess  of  his  propor- 
tion of  such  indebtedness;  but  in  case  of  the  fail- 
ure and  insolvency  of  such  association,  may  be  re- 
quired to  pay  any  unpaid  dues  or  installments 
which  have,  before  such  insolvency,  become  due 
from  such  member  to  the  association,  pursuant 
to  its  by-laws. 

Sec.  3.  Every  association  formed  under  this 
act  shall  prepare  articles  of  association,  in  writ- 
ing, which  shall  set  forth:  The  name  of  the  as- 
sociation, the  purpose  for  which  it  is  formed,  the 
place  where  its  principal  business  is  to  be  trans- 
acted, the  term  for  which  it  is  to  exist  (not  to  ex- 
ceed fifty  years),  the  number  of  the  directors 
thereof,  and  the  names  and  residences  of  those 
selected  for  the  first  year,  the  amount  which  each 
member  is  to  pay  upon  admission  as  membership 
fee,  and  that  each  member  signing  the  articles  has 


744  APPENDIX.  1 

actually  paid  in  such  sum,  and  that  the  interest 
and  right  of  each  member  therein  is  to  be  equal. 
Such  articles  of  association  must  be  subscribed  by 
the  original  associates  or  members,  and  acknowl- 
edged by  each  before  some  person  competent  to 
take  an  acknowledgment  of  a  deed  in  this  State. 
Such  articles  so  subscribed  and  acknowledged 
shall  be  filed  in  the  office  of  the  Secretary  of 
State,  who  shall  furnish  a  certified  copy  thereof, 
which  shall  be  filed  in  the  office  of  the  County 
Clerk  of  the  county  where  the  principal  business 
of  such  association  is  to  be  transacted;  and  from 
the  time  of  such  filing  in  the  office  of  said  County 
Clerk  the  association  shall  be  complete,  and  shall 
have  and  exercise  all  the  powers  for  which  it  was 
formed. 

Sec.  4.  Every  association  formed  under  this  Act 
must,  within  forty  days  after  it  shall  so  become 
an  association,  adopt  a  code  of  by-laws  for  the 
government  and  management  of  the  association, 
not  inconsistent  with  this  Act.  A  majority  of  all 
the  associates  shall  be  necessary  to  the  adoption 
of  such  by-laws,  and  the  same  must  be  written  in 
a  book,  and  subscribed  by  the  members  adopting 
the  same:  and  the  same  cannot  be  amended  or 
modified  except  by  the  vote  of  a  majority  of  all 
the  members,  after  notice  of  the  proposed  amend- 
ment shall  be  given,  as  the  by-laws  may  provide. 
Such  association  may,  by  its  code  of  by-laws,  pro- 
vide for  the  time,  place,  and  manner  of  calling 
and  conducting  its  meetings;  the  number  of  direc- 
tors, the  time  of  their  election,  their  term  of  office, 
the  mode  and  manner  of  their  removal,  the  mode 
and  manner  of  filling  vacancies  in  the  board 
caused  by  death,  resignation,  removal,  or  other- 
wise, and  the  power  and  authority  of  such  direc- 
tors, and  how  many  thereof  shall  be  necessary  to 
the  exercise  of  the  powers  of  such  directors,  which 
must  be  at  least  a  majority;  the  compensation  of 


APPENDIX.  74& 

any  of  the  directors,  or  of  any  officer;  the  uum- 
l>er  of  the  officers,  if  any,  other  than  the  directors, 
and  their  term  of  office;  the  mode  of  removal,  and 
the  method  of  tilling  a  vacancy;  the  mode  and 
manner  of  conducting  business;  the  mode  and 
manner  of  conducting  elections,  and  may  provide 
for  voting  by  ballots  forwarded  by  mail  or  other- 
wise; provided,  the  method  shall  secure  the  se- 
crecy of  the  ballot;  the  mode  and  manner  of  suc- 
cession of  membership,  and  the  qualifications  for 
membership,  and  on  what  conditions,  and  when 
membership  shall  cease,  and  the  mode  and  man- 
ner of  expulsion  of  a  member  subject  to  the  right 
that  an  expelled  member  shall  have  a  right  to 
have  the  board  of  directors  appraise  his  interest 
in  the  association  in  either  money,  property,  or 
labor,  as  the  directors  shall  deem  best,  and  to  have 
the  money,  property,  or  labor  so  awarded  him  paid 
or  delivered,  or  performed  within  forty  days  after 
expulsion;  the  amount  of  membership  fee,  and 
the  dues,  installments,  or  labor  which  each  mem- 
ber shall  be  required  to  pay  or  perform,  if  any. 
and  the  manner  of  collection  or  enforcement,  and 
for  forfeiting  or  selling  of  membership  interest  for 
nonpayment  or  nonperformance;  the  method,  time, 
and  manner  of  permitting  the  withdrawal  of  a 
member,  if  at  all,  and  how  his  interest  shall  be 
ascertained,  either  in  money  or  property,  and  with- 
in what  time  the  same  shall  be  paid  or  delivered  to 
such  member;  the  mode  and  manner  of  ascertain- 
ing the  interest  of  a  member  at  his  death,  if  his 
legal  representatives  or  none  of  them  desire  to 
succeed  to  the  membership,  and  whether  the  same 
shall  be  paid  to  his  legal  representatives  in  money, 
or  property,  or  labor,  and  within  what  time  the 
same  shall  be  paid,  or  delivered,  or  performed: 
such  other  things  as  may  be  proper  to  carry  out 
the  purpose  for  which  the  association  was  formed. 
Sec.  5.    The  by-laws  and  all  amendments  must 

Civ.    Code-63 


74ij  APPENDIX. 

be  recorded  in  a  book  uud  kept  iu  the  office  of  the 
association,  and  a  copy,  certified  by  the  directors, 
must  be  filed  in  the  office  of  the  County  Clerk 
where  the  principal  business  is  transacted. 

Sec.  6.  The  property  of  such  association  shall 
be  subject  to  judgment  and  execution  for  the  law- 
ful debts  of  the  association.  The  interest  of  a 
member  in  such  association,  if  sold  upon  execution 
or  any  judicial  or  governmental  order  whatever, 
cannot  authorize  the  purchaser  to  have  any  right 
except  to  succeed,  as  a  member  iu  the  association, 
with  the  consent  of  the  directors,  to  the  rights  of 
the  member  who&e  interest  is  thus  sold.  If  the 
directors  shall  choose  to  pay  or  settle  the  mat- 
ter after  such  sale,  they  may  either  cancel  the 
membership,  and  add  the  interest  thus  sold  to  the 
assets  or  common  property  of  the  association,  or 
re-issue  the  share  or  right  to  a  new  member  upon 
proper  payment  therefor,  as  the  directors  may  de- 
termine. 

Sec.  T.  The  purpose  of  the  business  may  be 
altered,  changed,  modified,  enlarged,  or  dimin- 
ished by  a  vote  of  two-thirds  of  all  the  members, 
at  a  special  election  to  be  called  for  such  purpose, 
of  which  notice  must  be  given  the  same  as  the  by- 
laAVS  shall  provide  for  election  of  directors. 

Sec.  8.  The  by-laws  shall  provide  for  the  time 
and  manner  in  which  profits  shall  be  divided  be- 
tween the  members,  and  what  proportion  of  the 
profits,  if  any,  shall  be  added  to  the  common  prop- 
erty or  funds  of  the  association.  But  the  by-laws 
may  provide  that  the  directors  may  suspend  or 
pass  the  payment  of  any  such  profit,  or  install- 
ment of  earnings,  at  their  discretion. 

Sec.  9.  Every  association  formed  under  this  act 
shall  have  power  of  succession  by  its  associate 
name  for  fifty  years;  to,  in  such  name,  sue  and  be 
sued  in  any  court;  to  make  and  use  a  common 
seal,  and  alter  the  same  at  pleasure:  to  receive  by 


APPENDIX.  747 

gift,  devise,  or  yurchaye,  bold,  and  convey  n-al 
and  personal  property,  as  the  purposes  of  the  as- 
sociation may  require;  to  appoint  such  subordi- 
nate agents  or  otticers  as  the  business  may  re- 
quire; to  admit  associates  or  members,  and  to  sell 
or  forfeit  their  interest  in  the  association  for  de- 
fault of  installments,  or  dues,  or  work,  or  labor 
required,  as  provided  by  the  by-laws;  to  enter  into 
any  and  all  lawful  contracts  or  obligations  essen- 
tial to  the  transaction  of  its  affairs,  for  the  pur- 
pose for  which  it  was  formed,  and  to  borrow 
money,  and  issue  all  such  notes,  bills,  or  evidences 
of  indebtedness  or  mortgage  as  its  by-laws  may 
provide  for;  to  trade,  barter,  buy,  sell,  exchange, 
and  to  do  all  other  things  proper  to  be  done  for 
the  purpose  of  carrying  into  effect  the  objects  for 
which  the  association  is  formed. 

Sec.  10.  Two  or  more  associations  formed  and 
existing  under  this  act  may  be  consolidated  to- 
gether, upon  such  terms  and  for  such  puriwses, 
and  by  such  name,  as  may  be  agreed  upon,  in 
writing,  signed  by  tAVO-thirds  of  the  members  of 
each  such  association.  Such  agreement  must  also 
state  all  the  matters  necessary  to  articles  of  asso- 
ciation, and  must  be  acknowledged  by  the  signers 
before  an  officer  competent  to  take  an  acknowledg- 
ment of  deeds  in  this  State,  and  be  filed  in  the  of- 
fice of  the  Secretary  of  State,  and  a  certified  copy 
thereof  be  filed  in  the  office  of  the  County  Clerk 
of  the  county  where  its  principal  business  is  to  be 
transacted;  and  from  and  after  the  filing  of  such 
certified  copy,  the  former  associations  comprising 
the  component  parts  shall  cease  to  exist,  and  the 
consolidated  association  shall  succeed  to  all  the 
rights,  duties,  and  powers  of  the  component  as- 
sociations, and  be  possessed  of  all  the  rights,  du- 
ties, and  powers  prescribed  in  the  agreement  of 
consolidated  association  not  inconsistent  with  this 
act,  and  shall  be  subject  to  nil  the  liabilities  .ind 


748  APPENDIX. 

obligations  of  the  former  component  associations, 
and  succeed  to  all  the  property  and  interests  there- 
of, and  may  make  by-laws  and  do  all  things  per- 
mitted by  this  act. 

Sec.  11.  Any  association  formed  or  consolidated 
under  this  act  may  be  dissolved  and  its  affairs 
wound  up  voluntarily  by  the  written  request  of 
two-thirds  of  the  members.  Such  request  shall  be 
addressed  to  the  directors,  and  shall  specify  rea- 
sons why  the  winding  up  of  the  affairs  of  the  as- 
sociation is  deemed  -advisable,  and  shall  name 
three  persons  who  are  members  to  act  in  liquida- 
tion and  in  winding  up  the  affairs  of  the  associa- 
tion, a  majority  of  whom  shall  thereupon  have 
full  power  to  do  all  things  necessary  to  liquida- 
tion; and  upon  the  filing  of  such  request  with  the 
directors,  and  a  copy  thereof  in  the  office  of  the 
County  Clerk  of  the  county  where  the  principal 
business  is  transacted,  all  power  of  the  directors 
shall  cease  and  the  persons  appointed  shall  pro- 
ceed to  wind  up  the  association,  and  realize  upon 
its  assets,  and  pay  its  debts,  and  divide  the  resi- 
due of  its  money  among  the  members,  share  and 
share  alike,  within  a  time  to  be  named  in  said 
written  request,  or  such  further  time  as  may  be 
granted  them  by  two-thirds  of  the  members,  in 
writing,  filed  in  the  office  of  said  County  Clerk; 
and  upon  the  completion  of  such  liquidation  the 
said  association  shall  be  deemed  dissolved.  No 
receiver  of  any  such  association,  or  of  any  prop- 
erty thereof,  or  of  any  right  therein,  can  be  ap- 
pointed by  any  court,  upon  the  application  of  any 
member,  save  after  judgment  of  dissolution  for 
usurping  franchises  at  the  suit  of  the  State  of 
California  by  its  Attorney  General. 

Sec.  12.  The  right  of  any  association  claiming 
to  be  organized  under  this  act  to  do  business  may 
be  inquired  into  by  quo  warranto,  at  the  suit  of 


APPENDIX.  749 

the  Attorney  Genenil  of  this  State,  but  not  other- 
Arise. 

Sec.  13.  This  act  being  passed  to  promote  asso- 
ciation for  mutual  welfare,  the  words  "lawful 
business*'  shall  extend  to  every  kind  of  lawful  ef- 
fort for  business,  educational,  industrial,  benevo- 
lent, social,  or  political  purposes,  whether  con- 
ducted for  profit  or  not,  and  this  act  shall  not  be 
strictly  construed,  but  its  provisions  must  at  all 
times  be  liberally  construed,  Avith  a  view  to  efifect 
its  object  and  to  promote  its  purposes. 

Sec.  14.    This  act  shall  tal^e  effect  immediately. 


An  Act  to  define  co-operative  business  corpora- 
tions and  to  provide  for  the  organization  and 
government  thereof. 

[Aproved  April  1,  1878;  1877,  883.] 

Co-operative  business  corporation  defineil. 

Section  1.  A  co-operative  business  corporati<tu 
is  a  corporation  formed  for  the  purpose  of  con- 
ducting any  lawful  business  and  of  dividing  a  por- 
tion of  its  profits  among  persons  other  than  its 
stockholders.  Co-operative  business  corporations 
shall  be  formed  under  and  governed  by  Division 
First,  Part  lY.,  Title  I.,  of  the  Civil  Code  of  tliis 
State,  and  when  so  formed,  may,  in  their  by-laws, 
in  addition  to  the  matters  enumerated  in  section 
three  hundred  and  three  of  said  code,  provide: 

1.  For  the  number  of  votes  to  which  each  stock- 
holder shall  be  entitled:  and. 

2.  The  amount  of  profits  which  shall  be  divided 
among  persons  other  than  the  stockholders,  and 
the  manner  in  which  and  the  persons  among 
whom  such  division  shall  be  made. 

Sec.  2.  This  act  shall  be  in  force  from  and  after 
its  passage. 


APPENDIX. 


COKt'OliATlUXS. 


Act  allowing  corporation  to  act  as  surety,  se«> 
ante,  p.  719,  title  Bonds. 

An  Act  to  provide  for  the  payment  of  the  wages  of 
mechanics  and  laborers  employed  by  corpora- 
tions, 

§  1.    Wages  paid  monthly, 
§  2.     Nonpayment,  rights  on. 

Section  1,  Every  corporation  doing  business  in 
this  State  shall  pay  the  mechanics  and  laborers 
employed  by  it  the  wages  earned  by  and  due  them 
Aveelvly  or  monthly,  on  such  day  in  each  week  or 
month  as  shall  be  selected  by  said  corporation. 

Sec,  2.  A  violation  of  the  provisions  of  section 
one  of  this  act  shall  entitle  each  of  the  said  me- 
chanics and  laborers  to  a  lien  on  all  the  property 
of  said  corporation  for  the  amount  of  their  wages, 
which  lieu  shall  take  preference  over  all  other 
liens,  except  duly  recorded  mortgages  or  deeds  of 
trust;  and  in  any  action  to  recover  the  amount  of 
such  wages  or  to  enforce  said  lien,  the  plaintiff 
shall  be  entitled  to  a  reasonable  attorney's  fee,  to 
be  fixed  by  the  court,  and  which  shall  form  part 
of  the  judgment  in  said  action,  and  shall  also  be 
entitled  to  an  attachment  against  said  property, 
f  A]>proved  March  31.  1891;  Stats.  1891,  195,] 


APPENDIX. 


All  Act  requiring  every  corporatiuu  doiug  business 
in  this  State  to  pay  their  employes,  and  each 
of  them,  at  least  once  in  each  and  every 
mouth,  the  wages  earned  by  such  employe;  to 
limit  the  defenses  which  may  be  set  up  by  such 
corporation  to  assignments  of  wages,  set-off  or 
counter  claims,  or  the  absence  of  such  em- 
ploye at  the  time  of  malting  payment,  and  in 
case  of  such  absence  the  wages  are  payable 
upon  demand;  to  prohibit  assignments  of 
wages  for  the  purpose  of  evading  the  provi- 
sions of  this  act  and  agreements  to  accept 
wages  at  longer  periods  than  as  herein  pro- 
vided as  a  condition  of  employment;  to  fix  a 
penalty  for  this  violation  of  the  provisions  of 
this  act  by  such  corporation,  and  to  provide 
for  the  disposition  of  any  fines  recovered  from 
corporations  violating  the  same. 
[Approved  March  29,  ISO";  Stats.  1897,  c.  170.] 

§  1.  Corporation  must  pay  wages  monthly. 

S  2.  Lien  in  case  of  failure. 

§  3.  Defenses. 

§  4.  Assignment  of  wages. 

§  5.  Agreement  as  to  wages. 

§  6.  In  what  money  wages  payable. 

§  7.  Penalty. 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  Every  corporation  doing  business  in 
this  State  shall  pay,  at  least  once  a  month,  each 
and  every  employe  employed  by  such  corporation, 
in  transacting  or  carrying  on  its  business,  or  in  the 
performance  of  labor  for  it,  the  wages  earned  by 
such  employe  during  the  preceding  mouth;  pro- 
vided, however,  that  if  at  the  time  of  payment 
any  employe  shall  be  absent,  or  not  engage<l  in  bis 


752  APPENDIX. 

usual  employment,  he  shall  be  entitled  to  said  pay- 
ment at  any  time  thereafter  upon  demand. 

Sec.  2.  A  violation  of  any  of  the  provisions  of 
section  one  of  this  act  shall  entitle  each  of  the 
said  employes  to  a  lien  on  all  the  property  of  said 
corporation  for  the  amount  of  their  wages,  which 
lien  shall  tal^e  preference  over  all  other  liens,  ex- 
cept duly  recorded  mortgages  or  deeds  of  trust; 
and  in  any  action  to  recover  the  amount  of  such 
wages,  or  to  enforce  said  lien,  the  plaintiff  shall 
be  entitled  to  a  reasonable  attorney's  fee,  to  be 
fixed  by  the  court,  and  which  shall  form  part  of 
the  judgment  in  said  action,  and  shall  also  be 
entitled  to  an  attachment  against  said  property. 
An  unrecorded  deed  shall  be  no  defense  to  such 
actions. 

Sec.  3.  That  on  the  trial  of  any  action  against 
such  cori)oration  for  a  violation  of  the  provisions 
of  this  act,  such  corporation  shall  not  be  allowed 
to  set  up  any  defense  for  a  failure  to  pay  monthly 
any  employe  engaged  in  transacting  or  carrying  on 
it  business  the  wages  earned  by  such  employe 
during  the  preceding  month,  other  than  the  fact 
that  such  wages  were  not  earned,  except  a  valid 
assignment  of  such  wages,  a  set-off  or  counter 
claim  against  the  same,  or  the  absence  of  such 
employe  from  his  usual  employment  at  the  time 
of  the  payment  of  the  wages  so  earned  by  him. 

Sec.  4.  No  assignment  of  future  wages,  payable 
monthly  under  the  provisions  of  this  act,  shall  be 
made  to  the  corporation  from  which  such  wages 
are  or  may  become  due,  to  any  person,  on  behalf 
of  such  corporation,  for  the  purpose  of  evading 
the  provisions  of  this  act,  and  all  such  assign- 
ments are  hereby  declared  to  be  invalid. 

Sec.  5.  No  corporation  shall  require,  and  no  em- 
ploye of  such  corporation  shall  make,  any  agree- 
ment to  accept  wages  at  longer  periods  than  as 


APPENDIX.  753 

provided  in  this  act  as  a  coudition  of  employ- 
ment. 

Sec.  6.  All  wages  earned  by  any  employe  en- 
gaged in  the  service  of  any  corporation  in  this 
State  shall  be  paid  in  lawful  moneys  of  the  United 
States,  or  in  checlis  negotiable  at  face  value  on 
demand. 

Sec.  7.  Any  corporation  violating  any  of  the 
provisions  of  this  act  shall  be  subject  to  a  fine 
not  exceeding  one  hundred  dollars,  or  less  than 
fifty  dollars,  for  each  violation,  the  same  to  be 
imposed  by  any  court  in  this  State  having  jurisdic- 
tion of  offenses  in  Avhich  the  penalty  does  not  ex- 
ceed a  fine  of  one  hundred  dollars,  said  fine  to  be 
paid  by  the  judge  or  magistrate  before  whom  a 
recovery  may  be  had  under  the  provisions  of  this 
act,  into  the  general  fund  of  the  treasury  of  the 
county  in  which  said  conviction  may  be  had. 

Sec.  S.  This  Act  shall  tal^e  effect  and  be  in 
force  from  and  after  the  first  day  of  April,  eigh- 
teen hundred  and  ninety-seven. 


754  APPENDIX. 


An  Act  authorizing  certain  corporations  to  act  as 
executor  and  in  other  capacities,  and  to  pro- 
Tide  for  and  regulate  the  administration  of 
trusts  by  such  corporations. 

[Approved  April  6,  1891;  Stats.  1891,  p.  490.] 

§    1.  What  corporations  may  act  as  executor. 

§    2.  Deposits  made  with  corporation. 

§    3.  Public  administrator  may  make  deposits. 

§    4.  Court  may  order  deposit  and  reduce  bonds. 

§    5.  Responsible   for  investments. 

§    6.  Interest. 

§    7.  Deposit   of   bonds   with    State   treasurer. 

§    8.  May  mortgage  real  estate. 

§    9.  Deposit,  increase,  and  decrease  of. 

§  10.  Abstracts  of  title. 

§  11.  Certificate  of  authority. 

§  12.  Semi-annual    statement. 

§  13.  Verification  of  statement. 

§  14.  Duty  of  bank  commissioners. 

§  16.  Administering  oaths  and  examining  witnesses. 

§  17.  Duty  when  corporation  violates  law. 

§  18.  False  statement  revokes  authority. 

§  19.  Retirement  from  business. 

Section  1.  Any  corporation  which  has  or  shall 
be  incorporated  under  the  general  incorporation 
laws  of  this  State,  authorized  by  its  articles  of  in- 
corporation to  act  as  executor,  administrator, 
guardian,  assignee,  receiver,  depositary,  or  trustee, 
and  having  a  paid-up  capital  of  not  less  than  two 
hundred  and  fifty  thousand  dollars,  of  which  one 
hundred  thousand  dollars  shall  have  been  actually 
paid  in,  in  cash,  may  be  appointed  to  act  in  such 
capacity  in  like  manner  as  individuals.  In  all 
cases  in  which  it  is  required  that  an  executor,  ad- 
ministrator, guardian,  assignee,  receiver,  deposi- 
tary, or  trustee,  shall  qualify  by  talking  and  sub- 
scribing an  oath,  or  in  which  an  affidavit  is  re- 
quired, it  shall  be  a  sufficient  qualification  by  such 
corporation  if  such  oath  shall  be  talien  and  sub- 


APPENDIX.  756 

scribed  or  such  affidavit  made  by  tlie  president  ov 
secretary  or  manager  thereof,  and  such  officer 
shall  be  liable  for  the  failure  of  such  corporation 
to  perform  any  of  the  duties  required  by  law  to 
be  performed  by  individuals  acting  in  like  ca- 
pacity and  subject  to  like  penalties;  and  such  cor- 
poration shall  be  liable  for  such  failure  to  the  full 
amount  of  its  capital  stock;  provided,  any  such  ap- 
poiutment  as  guardian  shall  apply  to  the  estate 
only,  and  not  to  the  person.  Such  corporations 
shall  be  entitled  to  and  shall  be  allowed  proper 
compensation  for  all  the  services  performed  by 
them  under  the  foregoing  provisions  of  this  act; 
but  such  compensation  shall  not  exceed  that  al- 
lowed to  natiu-al  persons  for  like  services. 

Sec.  2.  Any  court,  having  appointed  and  having 
jurisdiction  of  any  executor,  administrator,  guard- 
ian, assignee,  receiver,  depositary,  or  trustee,  up- 
on the  application  of  such  officer  or  trustee,  or 
upon  the  application  of  any  i^erson  having  an  in- 
terest in  the  estate  administered  by  such  officer  or 
trustee,  after  notice  to  the  other  parties  in  in- 
terest, as  the  court  may  direct,  and  after  a  hearing 
upon  such  application,  may  order  such  officer  or 
trustee  to  deposit  any  moneys  then  in  his  hands, 
or  which  may  come  into  his  hands  thereafter,  and 
until  the  further  order  of  said  court,  with  any 
such  corporation,  and  upon  deposit  of  such  money 
and  its  receipt  and  acceptance  by  such  corpora- 
tion the  said  officer  or  trustee  shall  be  discharged 
from  further  care  or  responsibility  therefor.  Such 
deposits  shall  be  paid  out  only  upon  the  orders  of 
said  court. 

Sec.  3.  And  it  shall  be  lawful  for  any  public  ad- 
ministrator to  deposit  with  any  such  corporation 
doing  business  in  the  county  or  city  and  county,  in 
which  he  is  acting  as  such  administrator  any  and 
all  moneys  of  any  estate  upon  which  he  is  admin- 
istering, not  required  for  the  current  expenses  of 


756  APPENDIX. 

the  aduiinistration.  And  such  deposits  shall  re- 
lieve the  public  administrator  from  depositing 
with  the  County  Treasurer  the  moneys  so  deposit- 
ed with  such  corporation.  Moneys  deposited  by  a 
public  administrator  may  be  drawn  upon  the  order 
of  such  administrator,  countersigned  by  a  judge 
of  a  Superior  Court,  when  required  for  the  purpose 
of  administration  or  otherwise. 

Sec.  4.  AVhenever,  in  the  judgment  of  any  court 
having  jurisdiction  of  any  estate  in  process  of  ad- 
misistration  by  any  executor,  administrator,  guard- 
ian, •  assignee,  receiver,  depositary,  or  truste,  the 
bond  required  by  law  of  such  officer  shall  seem 
burdensome  or  excessive,  upon  application  of  such 
officer  or  trustee,  and  after  such  notice  to  the  par- 
ties in  interest,  as  the  court  shall  direct,  and  after 
a  hearing  on  such  application,  the  said  court  may 
order  the  said  officer  or  trustee  to  deposit  with 
any  such  corporation,  for  safe  lieeping,  such  por- 
tion or  all  of  the  personal  assets  of  said  estate  as 
it  shall  deem  proper;  and  thereupon  said  court 
shall,  by  an  order  of  record,  reduce  the  bond  to  be 
given  or  theretofore  given  by  such  officer  or  trus- 
tees, so  as  to  cover  only  the  estate  remaining  in 
the  hands  of  said  officer  or  trustee;  and  the  prop- 
erty as  deposited  shall  thereupon  be  held  by  said 
corporation,  under  the  orders  and  directions  of 
said  court.  Any  court  having  jurisdiction  of  an 
estate  being  administered  by  a  public  administra- 
tor may  direct  such  public  administrator  to  de- 
posit all  or  any  part  of  the  moneys  of  the  estate 
not  required  for  the  current  expenses  of  the  ad- 
ministration, with  any  such  corporation  doing  bus- 
iness in  the  county  or  city  and  county  where  such 
public  administrator  is  acting. 

Sec.  5.  Such  corporations  shall  not  be  required 
to  give  any  bond  or  security  in  case  of  any  ap- 
pointment hereinbefore  provided  for,  except  as 
hereinafter  provided,  but  shall  be  responsible  for 


APPENDIX.  757 

all  investments  which  shall  be  made  by  it  of  the 
funds  which  may  be  intrusted  to  it  for  investment 
by  such  court,  and  shall  be  further  liable  as  natu- 
ral persons  in  like  positions  now  are,  and  as  here- 
inafter provided.  The  amount  of  money  which 
any  such  corporation  shall  have  on  deposit  at  any 
time  shall  not  exceed  ten  times  the  amount  of  its 
paid-up  capital  and  surplus,  and  its  outstanding 
loans  shall  not  at  any  time  exceed  said  amount. 

Sec.  6.  Such  corporations  shall  pay  interest  up- 
on all  moneys  held  by  them  by  virtue  of  this  act, 
at  such  rate  as  may  be  agreed  upon  at  the  time  of 
its  acceptance  of  any  such  appointment,  or  as 
shall  be  provided  by  the  order  of  the  court. 

Sec.  7.  Each  corporation,  before  accepting  any 
such  appointment  or  deposit,  shall  deposit  Mith  the 
Treasurer  of  State,  for  the  benefit  of  the  creditors 
of  said  corporation,  the  sum  of  one  hundred  thous- 
and dollars  (S100,000.00),  in  bonds  of  the  United 
States,  or  municipal  bonds  of  this  State,  or  of  any 
county,  or  city,  or  school  district  thereof,  or  in 
mortgages  on  improved  and  productive  real  es- 
tate in  this  State,  being  first  liens  thereon,  and  the 
real  estate  being  worth  at  least  twice  the  amount 
loaned  thereon.  The  bonds  and  securities  so  de- 
posited may  be  exchanged  from  time  to  time  for 
other  securities,  receivable  as  aforesaid.  Said 
bonds  of  the  United  States,  or  municipal  bonds  of 
this  State,  or  of  any  county,  city,  or  school  district 
thereof,  to  be  registered  in  the  name  of  said 
Treasurer,  officially,  and  all  said  securities  to  bo 
subject  to  sale  and  transfer,  and  to  the  disposal 
of  the  proceeds  by  said  Treasurer,  only  on  the 
order  of  a  court  of  competent  .iurisdic-tit>n.  and  as 
hereinafter  provided.  [Amendment,  approve*! 
April  1.  1897;  Stats.  1S07.  c.  2G5.] 

Sec.  8.  Any  such  corporation,  having  a  paid-up 
capital  in  excess  of  two  hundred  and  fifty  thous- 
;»nd    dollars,    may  be  permitted    by  the  Board  of 

Civ.  Code— 54 


758  APPENDIX. 

Bank  Commissioners  to  mortgage  any  improved 
and  productive  real  estate  owned  by  it,  in  excess 
of  said  amount,  to  tlie  Treasurer  of  State,  for 
such  sum  as  tlie  said  board  may  determine;  and 
such  mortgage  may  be  deposited  with  said  Treas- 
urer, and,  when  so  deposited,  it  shall  be  included 
in  the  amount  of  securities,  hereinabove  required 
to  be  deposited  with  said  Treasurer  for  the  benefit 
of  the  creditors  of  said  corporation. 

Sec.  9.  So  long  as  the  corporation  so  depositing 
shall  continue  solvent,  such  corporation  shall  be 
permitted  to  receive  from  said  Treasurer  the  in- 
terest or  dividends  on  said  deposit;  provided,  how- 
ever, that  when  it  shall  appear  to  the  Board  of 
Bank  Commissioners,  from  the  semi-annual  re- 
port of  any  such  corporation,  that  the  value  of 
the  personal  property  and  cash  held  and  possessed 
by  such  corporation,  by  virtue  of  the  provisions 
of  this  act  and  any  amendment  thereof,  exceeds 
ten  times  the  amount  of  the  deposit  aforesaid,  said 
iDoard  shall  require  said  corporation  to  forthwith 
increase  its  said  deposit  to  the  sum  of  five  hun- 
dred thousand  dollars  in  such  securities.  And 
whenever  it  shall  appear  to  said  board  that  the 
amount  of  personal  property  and  cash  so  held  by 
SiJij  such  corporation  has  been  reduced  below  ten 
times  the  value  of  its  original  deposit  above  pro- 
vided for,  and  said  corporation  is  not  in  any  de- 
fault in  its  duties  and  obligations  hereunder,  they 
shall  allow  such  corporation  to  reduce  its  said  de- 
posit to  the  sum  of  two  hundred  thousand  dollars, 
by  the  withdrawal  of  such  additional  deposit,  until 
such  time  as  an  increase  in  its  holdings  shall  again 
require  an  additional  deposit,  as  hereinbefore  pro- 
vided. 

Sec.  10.  When  any  part  of  such  deposit  is  made 
in  bonds  and  mortgages,  it  shall  be  accompanied 
by  full  abstracts  of  titles  and  searches,  and  shall 
be  examined  and  approved  by  or  under  the  direc- 


APPENDIX.  :.-,•» 

tion  of  the  said  board.  The  fees  for  an  examina- 
tion of  title  by  counsel,  to  be  paid  by  the  corpora- 
tion malving  the  deposit,  shall  not  exceed  twenty 
<l<illars  for  each  mortgage,  and  the  fee  for  each 
appraiser,  not  exceeding  two,  besides  expenses, 
shall  be  five  dollars  for  each  mortgage. 

Sec.  11.  It  shall  not  be  lawful  for  any  such  cor- 
poration to  accept  any  trust  or  deposit,  as  herein- 
before provided,  after  the  passage  of  this  act  with- 
out first  procuring  from  the  Board  of  Banl^  Com- 
missioners a  certificate  of  authority,  stating  that 
such  corporation  has  complied  with  the  require- 
ments of  this  act  in  respect  to  such  deposit. 

Sec.  12.  Such  corporation  shall  file  with  the  said 
Board  of  Banli  Commissioners,  during  the  months 
of  January  and  July  of  each  year,  a  statement,  un- 
der oath,  of  the  condition  of  such  corporation  at 
the  close  of  business  on  the  thirty-first  day  of  De- 
cember and  the  thirtieth  day  of  June,  respectively, 
next  preceding,  showing  its  financial  condition. 
Also,  a  list  and  brief  description  of  the  trusts  held 
by  such  corporation,  the  source  of  the  appoint- 
ment thereto,  and  the  amount  of  real  and  per- 
sonal estate  held  by  such  corporation  l)y  virtue 
thereof,  except  that  mere  mortgage  trusts,  where- 
in no  action  has  been  taken  by  such  corporation, 
shall  not  be  included  in  such  statement.  The  said 
statement  shall  also  be  in  such  form,  and  contain 
such  reports,  returns,  and  information,  as  to  the 
affairs,  business,  condition,  and  resources  of  the 
corporation,  as  the  said  board  may  from  time  to 
time  prescribe  and  recpiire. 

Sec.  13.  Such  statement  sliall  bo  verified  by  the 
affidavit  of  one  of  the  managing  officers  and  two 
of  the  directors  or  trustees  of  such  corporation, 
who  shall  also  state  in  such  affidavit  that  they 
have  examined  the  assets  and  books  of  such  cor- 
poration for  the  purpose  of  making  such  state- 
ment.   Any  false  swearing  in  regard  to  such  state- 


760  APPENDIX. 

meut  shall  be  deemed  perjury,  and  shall  be  sub- 
ject to  the  puuishmeut  prescribed  by  law  for  such 
offense. 

Sec.  14.  The  said  Board  of  Bank  Commissioners 
are  hereby  authorized  and  empowered  to  address 
any  inquiries  to  any  such  corporation,  or  the  offi- 
cers thereof,  in  relation  to  its  doings  and  condi- 
tions, or  any  other  matter  connected  with  its  af- 
fairs; and  it  shall  be  the  duty  of  any  such  corpora- 
tion or  person  so  addressed  to  promptly  reply,  in 
writing,  to  such  inquiries;  and  they  may  also  re- 
quire reports  from  any  such  corporation  at  any 
time  they  may  deem  desirable.  It  shall  be  the 
duty  of  one  or  more  of  the  Bank  Commissioners, 
as  designated  by  the  Commissioners,  annually,  or 
as  often  as  in  their  judgment  they  may  deem  it 
necessary,  without  previous  notice,  to  visit  and  to 
make  personal  examination  of  the  solvency  of  any 
such  corporation,  its  ability  to  fulfill  all  its  obliga- 
tions, and  report  its  condition  to  the  Attorney  Gen- 
eral as  soon  as  may  be  after  such  examination. 

Sec.  16.  Such  Commissioners  shall  have  power 
to  administer  an  oath  to  any  person  whose  testi- 
mony may  be  required  on  any  such  examination, 
and  to  compel  the  appearance  and  attendance  of 
any  such  person,  for  the  purpose  of  examination, 
by  summons,  subpcena,  or  attachment,  in  the  man- 
ner now  authorized  in  respect  to  the  attendance  of 
persons  as  witnesses  in  courts  of  record  in  this 
State;  and  all  books  and  papers  which  may  be 
deemed  necessary  to  examine  by  the  Commis- 
sioners shall  be  produced,  and  their  production 
may  be  compelled  in  like  manner. 

Sec.  17.  Whenever  it  shall  appear  to  the  Board 
of  Bank  Commissioners,  from  any  such  examina- 
tion or  report,  that  any  such  corporation  has  com- 
mitted any  violation  of  law,  or  is  conducting  its 
business  in  an  unsafe  or  unauthorized  manner, 
they  shall,  by  an  order  under  their  hands,  direct 


APPENDIX.  761 

the  discontinuance  of  such  illegal  and  unsafe  or 
unauthorized  practice,  and  strict  conformity  with 
the  requirements  of  the  law,  and  with  safety  and 
security  in  its  transactions;  and  whenever  any 
such  corporation  shall  refuse  or  neglect  to  make 
any  such  report  as  hereinbefore  required  or  to 
comply  with  any  such  order  as  aforesaid,  or  when- 
ever it  shall  appear  to  the  said  board  that  it  is 
unsafe  or  inexpedient  for  any  such  corporation  to 
continue  to  transact  business,  they  shall  commu- 
nicate the  facts  to  the  Attorney  General,  who 
shall  thereupon  institute  such  proceedings  against 
the  corporation  as  the  nature  of  the  case  may  re- 
quire. 

Sec.  IS.  If  the  Board  of  Banli:  Commissioners 
shall  at  any  time  have  satisfactory  evidence  that 
any  semi-annual  statement  or  other  report  re- 
quired or  authorized  by  this  act,  made  or  to  be 
made  by^  any  officer  or  officers  of  such  corporation, 
is  false,  it  shall  be  the  dtity  of  the  said  board  to 
immediately  revoke  the  certificate  of  authority 
granted  on  behalf  of  such  corporation  and  mail  a 
copy  of  such  revocation  to  said  corporation  and  to 
the  clerk  of  every  court  of  record  in  this  State. 
Such  revocation  shall  not  be  set  aside  until  satis- 
factory evidence  shall  be  given  to  said  Board  of 
Bank  Commissioners  that  such  corporation  is  in 
substance  and  in  fact  in  the  condition  set  forth 
in  such  statement  or  report,  and  that  all  the  re- 
quirements of  this  act  have  been  complied  with. 
Such  revocation  shall  be  sufficient  cause  for  the  re- 
moval of  such  corporation  from  any  appointment 
held  by  it  under  the  provisions  of  this  act. 

Sec.  19.  Any  corporation  which  desires  to  retire 
from  business  under  this  act  shall  furnish  to  the 
Board  of  Bank  Commissioners  satisfactory  evi- 
dence of  its  release  and  discharge  from  all  the  ob- 
ligations and  trusts  hereinbefore  provided  for: 
wheretipon  they  shall  revoke  their  certiticate  to 


762  APPENDIX. 

such  corporatiou,  and  thereupon  the  Treasurer  of 
State  shall  return  to  said  corporation  all  its  secu- 
rities. 

Sec.  20.  All  laws  and  parts  of  laws  in  conflict 
with  the  provisions  of  this  act  are  hereby  repealed. 

Sec.  21.  This  act  shall  talie  effect  and  be  in 
force  from  and  after  its  passage. 


An  Act  to  protect  stocliholders  and  persons  deal- 
ing with  corporations  in  this  State. 

[Approved  March  29,  1878;  1877-8,  695.] 

Frauds  and  misrepresentations,  penalty  for. 

Section  1.  Any  superintendent,  director,  secre- 
tary, manager,  agent,  or  other  officer  of  any  cor- 
poration formed  or  existing  under  the  laws  of  this 
State,  or  transacting  business  in  the  same,  and 
any  person  pretending  or  holding  himself  out  as 
such  superintendent,  director,  secretary,  manager, 
agent,  or  other  officer,  who  shall  willfully  sub- 
scribe, sign,  indorse,  verify,  or  otherwise  assent 
to  the  publication,  either  generally  or  privately,  to 
the  stockholders  or  other  persons  dealing  with 
such  corporation,  or  its  stock,  any  untrue  or  will- 
fully and  fraudulently  exaggerated  report,  pros- 
pectus, account,  statement  of  operations,  values, 
business,  profits,  expenditures,  or  prospects,  or 
other  paper  or  document  intended  to  produce  or 
give,  or  having  a  tendency  to  produce  or  give,  to 
the  shares  of  stock  in  such  corporation  a  greater 
value,  or  less  apparent  or  market  value,  than  they 
really  possess,  or  with  the  intention  of  defrauding 
any  particular  person  or  persons,  or  the  public,  or 
persons  generally,  shall  be  deemed  guilty  of  a 
felony,  and  on  conviction  thereof  shall  be  punish- 
ed by  imprisonment  in  the  State  prison  or  a  coun- 


APPENDIX.  783 

cy  jail  not  exceeding  two  years,  or  by  fine  not  ex- 
ceeding five  thousand  dollars,  or  by  both;  pro- 
vided, that  this  act  shall  be  construed  to  apply 
only  to  corporations  whose  capital  stock  has  been 
or  shall  hereafter  be  listed  at  a  stoclv  board  or 
stocli  exchange  in  this  State,  or  whose  shares  be 
regularly  bought  and  sold  in  the  stock  market  of 
this  State. 


An  Act  to  authorize  corporations  to  own  and  im- 
prove the  lots  and  houses  in  which  their  busi- 
ness is  carried  ou. 

[Approved  April  1,  187G;  1875-0,  053.] 

May  hold  lot,  etc. 

Section  1.  By  unanimous  consent  of  its  mem- 
bers or  stockholders,  any  corporation  existing  un- 
der the  laws  of  this  State  may  acquire  and  hold 
the  lot,  and  house  in  which  its  business  is  car- 
ried on,  and  may  improve  the  same  to  any  extent 
required  for  the  convenient  transaction  of  its  busi- 
ness. 

Sec.  2.    This  act  shall  take  effect  immediately. 


An  Act  to  provide  the   manner  of  execution  of 
deeds  by  cemetery  corporations. 

[Approved  March  20,  1895;  Stats.  1895,  p.  75.] 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  All  deeds  or  conveyances  executed  by 
cemetery  associations  or  incorporations  within  this 
State,  shall  be  executed  in  the  name  of  the  corpo- 
ration or  association,  under  the  seal  thereof,  by 


764  APPENDIX. 

the  president,  or  vice-president,  and  secretary 
thereof. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict 
with  this  statute,  in  so  far  as  they  conflict  with 
the  same,  are  hereby  repealed. 

Sec.  3.  This  act  shall  talie  effect  and  be  in  force 
from  and  after  its  passage. 


An  Act  in  relation  to  foreign  corporations. 

[Approved  April  1,  1872;  1871-2,  826.] 

§  1.     Designation    of    person    upon    whom    process    may    b( 

served. 
§  2.    Penalty  for  failure  to  designate. 
§  3.     Privileges  on  compliance. 

Foreign  corporations  to  designate  person  upon 
whom  process  may  be  served. 
Section  1.  Every  corporation  heretofore  created 
by  the  laws  of  any  other  State  and  doing  business 
in  this  State  shall,  within  one  hundred  and  twenty 
days  after  the  passage  of  this  act,  and  any  corpo- 
ration hereafter  created  and  doing  business  in  this 
State,  within  sixty  days  from  the  time  of  com- 
mencing to  do  business  in  this  State,  designate 
some  person  residing  in  the  county  in  which  the 
principal  place  of  business  of  said  corporation  in 
this  State  is,  upon  whom  process  issued  by  au- 
thority of  or  under  any  law  of  this  State  may  be 
served,  and  within  the  time  aforesaid  shall  file 
such  designation  in  the  ofJice  of  the  Secretary  of 
State;  and  a  copy  of  such  designation,  duly  cer- 
tified by  said  officer,  shall  be  evidence  of  such  ap- 
pointment; and  it  shall  be  lawful  to  serve  on  such 
person  so  designated  any  process  issued  as  afore- 
said. Such  service  shall  be  made  on  such  person 
in  such  manner  as  shall  be  prescribed  in  case  of 


APPENDIX.  765 

-service  required  to  be  made  on  foreign  corpora- 
tions, and  such  service  shall  be  deemed  to  be  a 
valid  service  thereof. 
Penalty  for  failure  to  designate. 

Sec.  2.  Every  corporation  created  by  the  laws 
if  any  other  State  which  shall  fail  to  comply  with 
the  provisions  of  the  first  section  of  this  statute 
shall  be  denied  the  benefit  of  the  statutes  of  this 
State  limiting  the  time  for  the  commencement  of 
civil  actions. 
Privileges  on  compliance. 

Sec.  3.  Every  corporation  created  by  the  laws  of 
any  other  State  which  shall  comply  with  the  pro- 
visions of  the  first  section  of  this  statute  shall  be 
entitled  to  the  benefit  of  the  statutes  of  this  State 
limiting  the  time  for  the  commencment  of  civil 
actions. 

Tax.— Act  imposing  tax  on  issue  of  certificate  of 
stock  corporation,  see  post,  title  Taxation. 


DEEDS. 

An  Act  relating  to  conveyances  of  real  estate. 

[Approved  INIarch  11,  1874;  1873-4,  345.] 

§  1.     Conveyances  by  persons  whose  names  are  changed. 
§  2.     Record  of  conveyances  made  by  public  officers. 
§  3.     Indexing  conveyances. 

Conveyances  by  persons  whose  names  are 
changed. 
Section  1.  Any  person  in  Avhom  the  title  of  real 
estate  is  vested  who  shall  afterwards,  from  any 
cause,  have  his  or  her  name  changed,  shall,  in  any 
conveyances  of  real  estate  so  held,  set  forth  the 
name  in  which  he  or  she  derived  title  to  said  real 
estate. 


766  APPENDIX. 

Record  of  conveyances  made  by  public  officers. 

Sec.  2.  All  convey{j.nces  of  real  estate,  except 
patents  issued  by  the  State  as  a  party,  made  by 
any  public  officer  pursuant  to  any  law  of  this 
State,  shall,  when  recorded  by  the  county  recorder, 
be  by  him  alphabetically  indexed  in  the  "index  of 
grantors,"  both  in  the  name  of  the  officer  making 
such  sale  and  in  the  name  of  the  person  owning 
the  property  so  sold. 
Indexing  of  such  conveyances. 

Sec.  3.  It  is  hereby  made  the  duty  of  all  coun- 
ty recorders  to  alphabetically  index  in  the  "index 
of  grantors,"  both  in  the  name  by  which  title  was 
acquired  and  also  the  name  by  which  the  same 
was  conveyed,  all  conveyances  referred  to  in  sec- 
tion one  of  this  act. 

Sec.  4.  This  act  shall  be  in  force  from  and  after 
its  passage. 


FIRE  TATROL. 


An  Act  to  confer  certain  powers  upon  corpora- 
tions, organized  for  the  purpose  of  discover- 
ing and  preventing  fires,  and  of  saving  prop- 
erty and  human  life  from  conflagration. 

[Approved  April  1,  1876;  1875-6,  689.] 

§  1.     Power  to  equip  and  employ  men  as  fire  patrol. 

§  2.    Privileges  granted   to   corps. 

§  3.     Costs    and   expenses   of   organization. 

Power  to  equip  and  employ  men  as  fire  patrol. 

Section  1.  Any  corporation  of  underwriters 
heretofore  organized  and  now  existing  or  which 
may  be  hereafter  organized  under  the  laws  of  this 
State,  for  the  purpose  of  discovering  and  prevent- 
ing fires  and  of  saving  property  and  human  life 
from  conflagration,  and  doing  business  within  any 
municipal   corporation   of  this   State,   shall   have 


APPENDIX.  7t7 

power,  at  its  own  proper  cost  and  expense,  to 
maintain  a  corps  of  men,  ,with  proper  officers, 
equipped  with  the  necessary  machinery  and  ap- 
paratus therefor,  whose  duty  it  shall  be,  so  far  as 
practicable,  to  discover  and  prevent  lires  and  save 
property  and  human  life  from  conllaj^ration;  and 
for  the  effective  discharge  of  such  duties,  power 
and  authority  is  hereby  granted  such  corps  to  en- 
ter any  building  on  fire,  or  in  which  property  is 
on  fire,  or  which  such  corps  or  any  officer  there- 
of shall  deem  to  be  immediately  exposed  to  any 
existing  fire,  or  in  danger  of  taking  fire  from  a 
burning  building,  and  to  remove  or  otherwise  save 
and  protect  from  conflagration  or  damage  by  wa- 
ter any  property,  during  and  immediately  after 
such  fire;  provided,  however,  that  nothing  in  this 
act  shall  be  so  construed  as  in  any  degree  to  less- 
en, impair,  or  interfere  with  the  powers,  privileges, 
duties,  or  authority  of  the  regular  fire  department 
of  such  municipality;  and  provided  further,  that 
-no  act  of  such  corps  shall  justify  any  owner  of 
any  building  or  property  in  abandoning  such 
building  or  property. 
Privileges  granted  to  fire  patrol  corps. 

Sec.  2.  Such  corporation,  with  its  officers  and 
corps,  when  running  to  a  fire,  shall,  with  its  horses, 
vehicles,  and  salvage  apparatus,  have  the  same 
right  of  way  as  is  or  may  be  bestowed  by  any  ordi- 
nance of  the  municipality  or  law  of  this  State  upon 
the  regular  fire  department  of  the  municipality 
wherein  such  corporation  is  acting;  provided,  that 
the  rights  of  such  fire  department  shall  always  be 
paramount  to  the  rights  of  said  corporation.  All 
ordinances  now  existing  or  which  may  hereafter 
be  passed  by  the  municipal  authorities  of  any  city 
and  county,  or  of  any  incorporated  city  or  town 
wherein  such  a  corporation  may  carry  on  business, 
and  all  laws  of  this  State  applicable  to  such  city 
and  county,  or  city  or  town,  for  the  conviction  or 


768  APPENDIX. 

punishment  of  any  person  or  persons  willfully  or 
carelessly  obstructing  the  progress  of  the  appara- 
tus of  the  fire  department  of  such  city  and  coun- 
ty, or  city  or  town,  while  going  to  a  fire,  or  of  any 
person  or  persons  willfully  or  carelessly  injuring 
any  animal  or  property  of  said  fire  department, 
shall  be  equally  applicable  to  any  person  or  per- 
sons willfully  or  carelessly  obstructing  the  pro- 
gress of  the  apparatus  of  such  corporation  while 
going  to  a  fire,  and  to  any  person  or  persons  who 
shall  willfully  or  carelessly  injure  any  animal  or 
property  of  such  corporation;  and  said  laws  and 
ordinances,  and  their  penalties,  may  be  enforced 
in  the  same  courts  and  in  the  same  manner,  and 
with  equal  force  and  effect,  as  in  the  case  of  the 
fire  department. 


An  Act  to  amend  section  three  of  an  act  entitled 
"An  Act  to  confer  certain  powers  upon  coi-po- 
rations  organized  for  the  purpose  of  discover- 
ing and  preventing  fires,  and  of  saving  prop- 
erty and  human  life  from  conflagration,"  ap- 
proved April  1,  1876. 

[Approved  March  29,  1897.] 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  Section  three  of  said  act  is  amended 
to  read  as  follows: 

Section  3.  In  the  month  of  July,  eighteen  hun- 
dred and  ninety-seven,  and  in  the  month  of  July 
in  every  year  thereafter,  there  shall  be  held  a 
meeting  of  all  corporations  heretofore  created,  or 


APPENDIX.  76» 

fhat  may  be  hereafter  created,  under  this  act,  of 
which  ten  days'  previous  notice  shall  be  inserted 
in  at  least  one  daily  newspaper  published  in  the 
municipality  where  said  corporation  is  organized 
or  established,  at  which  meeting  each  insurance 
company,  corporation,  association,  underwriter, 
agent,  person,  or  persons  doing  a  fire  insurance 
business  in  said  municipality,  whether  members 
of  said  corporation  or  not,  shall  have  a  right  to  be 
represented  at  such  meeting,  and  shall  be  entitled 
to  one  vote.  A  majority  of  the  whole  number  so 
represented  shall  have  power  to  decide  upon  the 
question  of  sustaining  the  fire  patrol  organized  by 
corporations  heretofore  created,  or  that  may  be 
hereafter  created,  under  this  act,  and  fixing  the 
maximum  amount  of  expenses  which  shall  be  in- 
curred therefor  during  the  fiscal  year  next  to  en- 
sue, which  amount  shall  in  no  case  exceed  two 
per  centum  of  the  aggregate  premiums  returned  as 
received,  as  provided  in  this  sectiou,  and  the  whole 
of  such  amount,  or  so  much  thereof  as  may  be 
necessary,  may  be  assessed  upon  all  insurance 
companies,  corporations,  associations,  underwrit- 
ers, agents,  person,  or  persons  who  assume  risu-t^ 
and  accept  premiums  for  fire  Insurance  in  said 
municipality,  as  hereinbefore  mentioned,  in  pro- 
portion to  the  several  amounts  of  premiums  re- 
turned, as  received  by  each,  as  hereinafter  pro- 
vided, and  such  assessments  shall  be  collectible,  by 
and  in  the  name  of  said  corporation,  in  any  court 
of  law  in  the  State  of  California  having  jurisdic- 
tion, in  such  manner  and  at  such  time  or  times 
as  said  corporation  may  determine.  In  order  to 
provide  for  the  payment  of  persons  employed  by 
said  corporation,  and  to  maintain  suitable  rooms, 
and  apparatus  for  saving  life  and  property  con- 
templated, said  corporation  is  empowered  to  re- 
quire a  statement  to  be  furnished  semi-annually, 
by  all  insurance  companies,  corporations,  associa- 
Civ.   Code— 65 


770  APPENDIX. 

tions,  underwriters,  agents,  or  persons,  of  the  ag- 
gregate amount  of  premiums  received  for  insuring 
property  in  the  municipality  wliere  said  corpora- 
tion is  organized  or  established,  for  and  during  the 
six  months  next  preceding  the  first  day  of  July 
and  the  first  day  of  January  of  each  year,  which 
statement  shall  be  sworn  to  by  the  president  or 
secretary  of  the  corporation  or  association,  or  by 
the  agent  or  person  so  acting  or  effecting  such  in- 
surance in  said  municipality,  and  shall  be  handed 
to  the  secretary  of  said  corporation  heretofore 
created  or  hereafter  to  be  created  under  the  pro- 
vision of  this  act  within  ten  days  after  the  first 
day  of  July  and  the  first  day  of  January  of  each 
year.  Said  secretary  shall,  within  the  ten  days 
aforesaid,  by  written  or  printed  demand  signed  by 
him,  require  from  every  insurance  company,  cor- 
poration, association,  underwriter,  agent,  or  per- 
sons engaged  in  the  business  of  fire  insurance  in 
the  municipality  where  said  corporation  is  organ- 
ized or  established,  the  statement  hereinbefore 
provided  for.  Such  demand  may  be  delivered  per- 
sonally at  the  oflice  of  such  insurance  company, 
corporation,  association,  underwriter,  agent  or  per- 
son within  said  municipality,  and  every  ofiicer  of 
such  insurance  company,  corporation,  association, 
and  every  such  underwriter,  agent  or  person  who 
shall,  for  fifteen  days  after  said  demand,  neglect 
to  render  the  statement  herein  provided  for,  shall 
forfeit  fifty  dollars  for  the  use  of  said  corporation, 
and  he  shall  also  forfeit  for  its  use  twenty-five  dol- 
lars in  addition  for  every  day  he  shall  so  neglect 
after  the  expiration  of  the  said  fifteen  days,  and 
such  additional  penalty  may  be  computed  and  col- 
lected up  to  the  time  of  the  trial  of  any  action 
brought  for  the  recovery  thereof. 

The  penalty  herein  provided  for  may  be  sued  for 
and  collected,  with  costs,  in  any  court  of  law  with- 


APPENDIX.  771 

in  the  State  of  California  having  juriisdietion,  by 
and  in  the  name  of  said  corporation. 

Sec.  2.  This  Act  shall  tal^e  effect  from  and  af- 
ter its  passage.  [Amendment  approved  March  29, 
1897;  Stats.  1897,  c.  168.] 


GUARDIANS. 

Act  providing  for  appointment  of  guardians  of 
children  in  orphan  asylums,  see  post,  title  Infancy. 


HOMESTEADS. 


An  Act  to  enable  certain  parties  therein  named  to 
alienate  or  incumber  homesteads. 

[Approved  March  25.  1874;  1873-4.  582.] 

§  1.  Alienation  of. 

§  2.  Notice  of  application. 

§  3.  Petition. 

§  4.  Order  and  effect. 

§  5.  Fees. 

Alienation  of  homestead. 

Section  1.  In  case  of  a  homestead,  if  either  the 
husband  or  wife  shall  become  hopelessly  insane, 
upon  application  of  the  husband  or  wife,  not  in- 
sane, to  the  probate  court  of  the  county  in  which 
said  homestead  is  situated,  and  upon  due  proof  of 
such  insanity,  the  court  may  malce  an  order  per- 
mitting the  husband  or  wife,  not  insane,  to  sell 
and  convey,  or  mortgage,  such  homestead. 

Notice  of  application. 

Sec.  2.  Notice  of  the  application  for  such  order 
shall  be  given  by  publication  of  the  same,  in  a 
newspaper  published  in  the  county  in  which  such 


772  APPENTDIX. 

homestead  is  situated,  if  there  be  a  newspaper 
published  therein,  once  each  weelv  for  three  suc- 
cessive weeks,  prior  to  the  hearing  of  such  appli- 
cation, and  a  copy  of  such  notice  shall  also  be 
served  upon  the  nearest  male  relative  of  such  in- 
sane husband  or  wife,  resident  in  this  State,  at 
least  three  weeks  prior  to  such  application;  and 
in  case  there  be  no  such  male  relative  known  to 
the  applicant,  a  copy  of  such  notice  shall  be  served 
upon  the  public  administrator  of  the  county  in 
which  such  homestead  is  situated;  and  it  is  hereby 
made  the  duty  of  such  public  administrator,  upon 
being  served  with  a  copy  of  such  notice,  to  appear 
in  court  and  see  that  such  application  is  made  in 
good  faith,  and  that  the  proceedings  thereon  are 
fairly  conducted. 
Petition. 

Sec.  3.  Thirty  days  before  the  hearing  of  any 
application  under  the  provisions  of  this  act,  the 
applicant  shall  present  and  file  in  the  court  in 
which  such  application  is  to  be  heard  a  petition  for 
the  order  mentioned  in  the  first  section  of  this 
act,  subscribed  and  sworn  to  by  the  applicant,  set- 
ting forth  the  name  and  age  of  the  insane  husband 
or  wife;  the  number,  age,  and  sex  of  the  children 
of  such  insane  husband  or  wife;  a  description  of 
the  premises  constituting  the  homestead;  the  value 
of  the  same;  the  county  in  which  it  is  situated; 
and  such  facts  in  addition  to  that  of  the  insanity 
of  the  husband  or  wife  relating  to  the  circum- 
stances and  necessities  of  the  applicant  and  his  or 
her  family  as  he  or  she  may  rely  upon  in  support 
of  the  petition. 

Order  and  effect. 

Sec.  4.  If  the  court  shall  make  the  order  pro- 
vided for  in  the  first  section  of  this  act,  the  same 
shall  be  entered  upon  the  minutes  of  the  court, 
and  thereafter    any  sale,    conveyance,    or    mort- 


APPENDIX.  773 

gage  made  in  pursuance  of  such  order  shall  be  as 
valid  and  effectual  as  if  the  property  affected 
thereby  was  the  absolute  property  of  the  person 
making  such  sale,  conveyance,  or  mortgage,  in  fee 
simple. 
Fees. 

Sec.  5.  For  all  services  rendered  by  any  public 
administrator  under  the  provisions  of  this  act  he 
shall  be  allowed  a  fee  not  exceeding  twenty  dol- 
lars, to  be  fixed  by  the  court,  and  the  same  shnll 
be  taxed  as  costs  against  the  person  making  appli- 
cation for  the  order  herein  provided  for. 

Sec.  6.  All  acts  and  parts  of  acts  in  conflict  with 
the  provisions  of  this  act  are  hereby  repealed. 

Sec.  7.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage. 


An  Act  supplementary  to  an  act  entitled  "An  Act 
to  authorize  the  formation  of  corporations  to 
provide  the  members  thereof  with  homesteads, 
or  lots  of  land  suitable  for  homesteads."  ap- 
proved May  twentieth,  eighteen  hundred  and 
sixty-one. 

[Approved  March  2'6,  1874;  1873-4,  525.] 

§  1.    Extension  of  time  for  homestead  corporations. 
§  2.     How  existence  continued. 

Extension  of  time  for  homestead  corporations. 

Section  1.  Any  corporation  formed  under  the 
act  to  which  this  act  is  supplemental,  whose  pe- 
riod of  existence  is  not  stated  in  its  articles  of  in- 
corporation to  be  ten  years,  may  continue  its  cor- 
porate existence  for  ten  years  from  the  date  of 
filing  its  articles  of  incorporation,  upon  complying 
with  the  provisions  of  this  act. 


774  APPENDIX. 

How  existence  continued. 

Sec.  2.  Any  such  corporation  existing  on  the 
first  day  of  January,  eighteen  hundred  and  sev- 
enty-four, may,  at  any  time  before  its  period  of 
existence,  as  stated  in  its  articles  of  incorporation, 
shall  expire,  continue  its  existence,  as  stated  in 
section  one  of  this  act,  by  a  majority  vote  of  its 
board  of  trustees  at  any  meeting  of  such  board,  or 
by  a  vote  of  a  majority  of  the  stoclvholders,  as  the 
board  of  trustees  may  elect.  A  certificate  of  the 
action  of  the  directors,  signed  by  them  and  their 
secretary,  when  the  election  is  made  by  their  vote, 
or  upon  the  written  consent  of  the  stockholders  or 
members,  or  a  certificate  of  the  proceedings  of  the 
meeting  of  the  stocliholders  or  members,  when 
such  election  is  made  at  any  such  meeting,  signed 
by  the  chairman  and  secretary  of  the  meeting  and 
a  majority  of  the  directors,  must  be  filed  in  the 
office  of  the  Clerk  of  the  county  where  the  original 
articles  of  incorporation  are  filed,  and  a  certified 
copy  thereof  must  be  filed  in  the  office  of  the 
Secretary  of  State;  and  thereafter  the  corporation 
shall  continue  its  existence  under  the  provisions  of 
this  act,  and  shall  possess  all  the  rights  and  pow- 
ers, and  be  subject  to  all  the  obligations,  restric- 
tions, and  limitations  prescribed  by  the  act  of 
which  this  is  supplementary. 

Sec.  3.  This  act  shall  take  effect  from  and  after 
its  passage. 


APPENDIX.  775 


INFANCY 


An  Act  to  regulate  the  hours  of  kibor  aud  employ- 
ment of  minors. 

[ApproTed  February  8,  1889;  1889,  4.] 

§  1.  Employment  of  minors. 

§  2.  Age  of  minor  to  be  rerorded. 

§  3.  Notice  of  hours  of  labor  to  be  posted. 

5  4.  Violation  and  penalty. 

§  5.  Duty  of  commissioner. 

Employment  of  minors. 

Stction  1.  No  minor  under  the  age  of  eighteen 
shall  be  employed  in  laboring  in  any  manufactur- 
ing, mechanical,  or  mercantile  establishment,  or 
other  place  of  labor,  more  than  ten  hours  in  one 
day,  except  when  it  is  necessary  to  make  repairs 
to  prevent  the  interruption  of  the  ordinary  run- 
ning of  the  machinery,  or  when  a  different  appor- 
tionment of  the  hours  of  labor  is  made  for  the  sole 
purpose  of  making  a  shorter  day's  work  for  one 
day  of  the  week;  and  in  no  case  shall  the  hours  of 
labor  exceed  sixty  hours  in  a  week. 
Age  of  minor  to  be  recorded. 

Sec.  2.  No  child  under  ten  years  of  age  shall 
be  employed  in  any  factory,  workshop,  or  mercan- 
tile establishment;  and  every  minor  under  sixteen 
years  of  age  when  so  employed  shall  be  recorded 
by  name  in  a  book  kept  for  the  purpose,  and  a  cer- 
tificate (duly  verified  by  his  or  her  parent  or  guar- 
dian, or  if  the  minor  shall  have  no  parent  or  guar- 
dian, then  by  such  minor,  stating  age  and  place 
of  birth  of  such  minor)  shall  be  kept  on  file  by 
the  employer,  which  book  and  which  certificate 
shall  be  produced  by  him  or  his  agent  at  the  n^ 
quirement  of  the  commissioner  of  the  bureau  of 
labor  statistics. 


776  APPENDIX. 

Notice  of  liours  of  labor  to  be  posted. 

Sec.  3.  Every  person  or  corporation  employing 
minors  under  sixteen  years  of  age  in  any  manu- 
facturing establishment  shall  post,  and  keep  post- 
ed, in  a  conspicuous  place  in  every  room  where 
such  help  is  emploj^ed,  a  printed  notice  stating  the 
number  of  hours  per  day  for  each  day  of  the  weeli 
required  of  such  persons,  and  in  every  room  where 
minors  under  sixteen  years  of  age  are  employed,  a 
list  of  their  names,  with  their  ages. 
Violation  and  penally. 

Sec.  4.  Any  person  or  corporation  that  know- 
ingly violates  or  omits  to  comply  with  any  of  the 
foregoing  provisions  of  this  act,  or  who  knowing- 
ly employs,  or  suffers  or  permits  any  minor  to  be 
employed,  in  violation  thereof,  shall,  on  convic- 
tion, be  punished  by  a  fine  of  not  less  than  fifty 
nor  more  than  two  hundred  dollars  for  each  and 
every  offense. 
Duty  of  commissioner. 

Sec.  5.  It  shall  be  the  duty  of  the  Commissioner 
of  the  bureau  of  Labor  Statistics  to  enforce  the 
provisions  of  this  act. 

Sec.  6.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage. 


An  Act  to  provide  for  the  appointment  of  guar- 
dians of  children  maintained  in  any  orphans" 
home  or  orphan  asylum  in  this  state. 

[Approved  March  23,  1893;  Stats.  1893,  203.] 

Section  1.  When  any  orphan  or  half -orphan  has 
been  maintained  in  any  orphans'  asylum  or  or- 
phans' home  in  the  State  of  California  for  more 
than  one  year,  the  managers  of  said  home  or  asy- 
lum shall  be  entitled  to  the  guardianship  of  such 


APPEN^DIX.  777 

child  in  preference  to  any  other  person;  provido<l. 
however,  that  such  managers  shall  not  be  appoint- 
ed guardian  of  a  minor  child  over  fourteen  years 
of  age  without  its  consent,  nor  shall  this  act  pre- 
clude the  court  of  competent  jurisdiction  from  in- 
quiring into  the  fitness  of  such  managers  for  the 
guardianship  of  such  children;  but  in  exercising 
the  power  of  the  court  to  appoint  guardians  for 
minors,  the  managers  of  the  home  having  the  care 
of  such  child  for  more  than  one  year  shall,  if  there 
be  no  special  reasons  to  the  contrary  in  any  partic- 
ular case,  be  preferred  in  the  guardianship  of  the 
person  of  the  child  to  the  parent  so  leaving  the 
child,  without  good  cause  therefor  being  shown, 
under  the  care  of  said  home  for  the  said  time. 

Sec.  2.    This  act  shall  talve  effect  immediately. 

Statute  prohibiting  use  of  child  for  exhibitions, 
immoral  purposes,  soliciting  alms,  etc:  See  Penal 
Code,  Appendix. 

Begging  by  miuor  to  be  restrained:  See  Penal 
Code,  Appendix. 

Act  for  incorporation  of  societies  for  prevention 
of  cruelty  to  children:  See  Penal  Code.  Appendix. 

Minors  not  to  enter  saloon:  See  I'enal  Code,  Ap- 
pendix. 

Act  to  prevent  sale  of  intoxicants  to  minor:  St»e 
Penal  Code,  Appendix. 

Child  not  to  be  confined  with  adult  charmed 
with  crime:  See  Penal  Code,  Appendix. 


INSURANCE. 

Fire  patrol:  See  ante,  p.  759. 

An  Act  relating  to  life,  health,  accident.  un<i  i»n- 
nuity  or  endowment  insurance  on  the  assess- 
ment plan,  and  the  conduct  of  the  business  of 
such  insurance. 

[Approved  March  19,  1S91:  Stats.  ISOl.  p.  120.1 


778  APPENDIX. 

§    1.  Construction   of   contract. 

§    2.  Formation    of   corporation— Deposit— Certificate. 

§    3.  Reincorporation. 

§    4.  Contracts— Liens— Payments. 

§    5.  Reserve  fund— Investments. 

§    6.  Requirements   from   foreign   corporations— License. 

§    7.  Limitations   as   to   age— Certificate— False   Statements. 

§    8.  Exemption  from  attactiment. 

§    9.  Annual  statement. 

§  10.  Duty  of  commissioner. 

§  11.  Lapses— Notice  of  assessment. 

§  12.  Fees. 

§  13.  Expenses  of  prosecution. 

§  14.  No  application  to  secret  societies. 

Section  1.  Every  contract  whereby  a  benefit 
may  accrue  to  a  party  or  parties  tlierein  named 
upon  tlie  death  or  physical  disability  of  a  person 
insured  thereunder  or  for  the  payment  of  any 
sums  of  money  dependent  in  any  degree  upon 
the  collection  of  assessments  or  dues  from  persons 
holding  similar  contracts  shall  be  deemed  a  con- 
tract of  mutual  insurance  upon  the  assessment 
plan.  Such  contracts  must  show  that  the  liabili- 
ties of  the  insured  thereunder  are  not  limited  to 
fixed  premiums. 

Sec.  2.  Corporations  may  be  formed  under  the 
general  laws  of  this  State  to  carry  on  the  business 
of  mutual  insurance  upon  the  assessment  plan, 
and  shall  be  subject  only  to  the  provisions  of  this 
act.  No  such  corporations  shall  issue  contracts  of 
insurance  until  at  least  two  hundred  (200)  persons 
have  applied  in  writing  for  membership  or  insur- 
ance therein,  and  have  paid  to  the  treasurer  of 
such  corporation  the  sum  of  five  thousand  ($5,000) 
dollars.  This  sum  shall  be  invested  in  bonds  or 
securities,  approved  by  the  Insurance  Commis- 
sioner of  this  State,  or  deposited  in  some  bank  in 
this  State  where  it  will  earn  interest.  Said  bonds, 
or  securities,  or  evidences  of  such  deposit,  shall  be 
placed,  through  the  Insurance  Commissioner  of 
this  State,  with  the  State  Treasurer,  and  the  prin- 
cipal sum  shall  be  held  in  trust  for  the  contract- 
holders  of  such  corporation,  with  the  right  in  the 


APPENDIX.  779 

corporation  to  exchange  said  bonds,  securities,  or 
evidence  of  banli  deposit  for  others  of  like  value. 
Such  corporation  shall  also,  as  a  condition  prece- 
dent to  issuing  any  contracts  of  insurance,  obtain 
the  written  certificate  of  the  Insurance  Commis- 
sioner that  it  has  complied  with  the  requirements 
of  this  act;  and  that  the  name  of  the  corporation 
is  not  the  same  as  that  of  any  other  corporation 
of  this  or  other  States,  as  indicated  by  the  in- 
surance department  reports  in  his  office;  nor  shall 
the  Commissioner  approve  any  name  or  title  so 
closely  resembling  another  as  to  mislead  the  pub- 
lic. No  corporation  formed  hereunder  shall  have 
legal  existence  after  one  year  from  the  date  of  its 
articles,  unless  its  organization  has  been  completed 
and  business  commenced;  nor  shall  any  corpora- 
tion or  individual  solicit,  or  cause  to  be  solicited, 
any  business,  until  such  corporation  shall  have 
complied  with  the  provisions  of  section  six  hun- 
dred and  thirty-three  of  the  Political  Code  of  this 
State. 

Sec.  3.  Any  existing  corporation  engaged  in 
transacting  the  business  of  life,  health,  accident, 
or  endowment  insurance  on  the  assessment  plan, 
may  reincorporate  under  the  provisions  of  the 
Civil  Code  of  this  State,  and  under  the  provisions 
of  this  act;  provided,  that  it  shall  not  be  obliga- 
tory upon  such  corporation  to  reincorporate:  an<l 
any  such  existing  corporation  may  continue  to  ex- 
ercise all  rights,  powers,  and  privileges  conferred 
by  this  act,  the  same  as  if  incorporated  hereimder. 

Sec.  4.  The  contracts  of  insurance  issued  by 
such  corporation  shall  specify  the  sum  or  sums  to 
be  paid  upon  the  happening  of  the  contingency  in- 
sured against,  and  when  such  payments  will  bo 
made.  Unless  the  contract  shall  have  been  invali- 
dated by  fraud  or  by  breach  of  its  conditions,  the 
corporation  shall  be  obligated  to  pay  the  benefici- 
ary the  amount  or  amounts  specified  in  its  con- 
tract at  the  time  or  times  therein  named,  and  such 


780  APPENDIX. 

indebtedness  shall  be  a  lien  upon  all  the  property 
of  such  corporation,  with  priority  over  all  indebt- 
edness thereafter  incurred,  except  as  hereinafter 
provided  in  case  of  insolvency.  Failure  to  make 
such  payment,  within  thirty  days  after  notice,  at 
the  home  office,  by  mail,  as  provided  by  law,  of 
final  judgment,  unless  waiver  is  made  by  the 
beneficiary,  shall  constitute  a  forfeiture  of  the 
right  to  do  business. 

Sec.  5.  Every  domestic  corporation  organized  or 
doing  business  under  this  act  shall  accumulate  a 
reserve  or  emergency  fund,  which  shall  at  all 
times  be  not  less  than  the  largest  benefit  contract- 
ed to  be  paid  by  it  to  any  one  person.  Every  ex- 
isting domestic  corporation  must  accumulate  such 
fund  within  one  year  from  the  date  when  this  act 
takes  effect,  and  any  corporation  organized  here- 
under, within  one  year  from  the  date  of  its  cer- 
tificate of  incorporation.  Such  fund,  to  the  extent 
of  the  largest  amount  contracted  to  be  paid  by 
any  such  corporation  to  any  one  person,  shall  be  so 
invested  and  deposited,  as  provided  in  section  two 
hereof,  with  the  right  in  the  corporation  to  ex- 
change any  such  securities  for  others  of  equal, 
value.  The  deposit  required  by  section  two  of 
this  act  shall  constitute  a  part  of  the  reserve  re- 
quired by  this  section,  at  the  option  of  such  corpo- 
ration. When  any  corporation  doing  business 
hereunder  shall  discontinue  business,  this  fund 
shall  be  returned  to  such  corporation,  or  so  dis- 
posed of  as  may  be  determined  by  the  Superior 
Court  of  the  county  or  city  and  county  in  which 
is  its  principal  place  of  business. 

Sec.  6.  Corporations  organized  under  the  laws 
of  any  other  State  or  country  to  transact  the  bus- 
ines  of  mutual  assessment  insurance  must  as  a 
condition  precedent  to  transacting  business  in 
this  State,  deposit  with  the  insurance  commission- 
er of  this  State  a  certified  copy  of  its  charter  or 
other  instrument  required   by   its   home   authori- 


APPENDIX.  781 

Tii's;  a  statement  under  oath,  of  its  president  <ir 
secretary,  of  its  business  for  the  preceding;  year, 
in  such  form  as  may  be  required  by  the  insur- 
ance commissioner  of  this  State;  an  ai)i)()intment 
of  a  general  agent,  service  upon  whom  sliall  bind 
the  corporation;  a  certificate  that  for  the  next  pre- 
ceding twelve  months  it  has  paid  in  full  the  max- 
imum amount  named  in  its  contracts  of  insurance; 
a  certificate  from  the  proper  officer  of  its  state  or 
government  that  like  corporations  of  this  state  are 
legally  entitled  to  do  business  in  such  State  or 
country;  copies  of  its  contracts  of  insurance  and 
applications, which  must  showthatthe  liabilitiesof 
its  members  are  not  limited  to  fixed  premiums;  and 
evidence,  satisfactory  to  the  insurance  commission- 
er, that  the  corporation  has  accumulated  a  fund 
equal  to  that  required  of  like  corporations  in  this 
State,  constituting  a  reserve  or  surplus  fund,  held 
in  trust  for  the  benefit  of  its  contract-holders,  and 
so  invested  and  held  as  required  by  the  laws  of 
the  State  or  government  under  which  such  corpo- 
ration was  organized.  The  insurance  commission- 
er shall  thereupon  issue  a  license  to  such  corpo- 
ration to  do  btisiness  in  this  State.  This  license 
must  be  renewed  annually,  and  may  be  revoked 
whenever  it  is  ascertained  that  the  statements 
required  to  be  made  by  this  section  are  not  true. 
Upon  such  revocation,  notice  thereof  shall  be 
given  by  the  insurance  commissioner,  by  publica- 
tion in  some  newspaper  published  in  the  city  and 
county  of  San  Francisco,  for  two  weeks,  daily, 
and  no  new  contracts  shall  be  made  by  such  com- 
pany in  this  state.  When  any  other  State  or  coun- 
try imposes  any  additional  license,  fees,  taxes,  or 
penalties  upon  any  corporation  organized  or  do- 
ing business  under  this  act.  like  license,  fees, 
taxes,  or  penalties  shall  be  imposed  upon  corpora- 
tions of  the  same  kind  and  their  agents  of  such 
State  or  country  doing  business  in  this  State. 
Civ.    Code— 66 


782  APPENDIX. 

See.  7.  No  corporation  doing  business  under 
this  act  (except  accident  or  casualty  corporations) 
shall  issue  a  contract  of  insurance  upon  the  life 
of  any  person  under  fifteen  years  of  age,  or  after 
he  or  she  has  passed  his  or  her  sixty-first  birth- 
day. Every  such  contract  of  insurance  shall  be 
founded  upon  written  application  therefor,  and 
(except  when  the  application  is  for  health,  acci- 
dent, or  casualty  insurance  only,  or  for  one  hun- 
dred dollars  life  insurance  or  less)  such  applica- 
table  physician,  containing  a  detailed  statement  of 
tion  shall  be  accompanied  by  the  report  of  a  repu- 
his  examination  of  the  applicant,  and  showing  the 
applicant  to  be  in  good  health,  and  recommending 
the  issuance  of  a  contract  of  insurance.  Any  so- 
licitor, agent,  employee,  examining  physician,  or 
other  person  making  a  false  or  fraudulent  state- 
ment to  any  corporation  doing  busines  under  this 
act,  with  reference  to  any  application  for  insur- 
ance or  for  the  purpose  of  obtaining  any  money 
or  benefit  from  such  corporation,  shall  be  guilty  of 
a  misdemeanor,  and  upon  conviction  shall  be  pun- 
ished by  a  fine  of  not  less  than  one  hundred  dol- 
lars nor  more  than  five  hundred  dollars,  or  by  im- 
prisonment in  the  county  jail  for  not  less  than 
thirty  days  nor  more  than  one  year,  or  by  both 
such  fine  and  imprisonment,  in  tlie  discretion  of 
the  court;  and  any  person  who  shall  malie  a  false 
statement  of  any  material  fact  or  thing  in  a  sworn 
statement  as  to  the  death  or  disability  of  a  con- 
tract-holder in  any  such  corporation,  for  the  pur- 
pose of  procuring  or  aiding  the  beneficiary  or 
beneficiaries  or  contract-holder  in  procuring  the 
payment  of  a  benefit  named  in  the  contract,  shall 
be  guilty  of  perjury,  and  may  be  proceeded 
against  and  punished  as  provided  by  the  statute 
of  this  State  in  relation  to  the  crime  of  perjury. 

Sec.  8.  The  money,  benefit,  annuties,  endow- 
ment, charity,  relief,  or  aid  to  be  paid  as  provided 
by  the  contracts  issued  by  any  corporation  doing 


APPENDIX.  783 

business  under  this  act  shall  not  be  liable  to  at- 
tachment or  other  process,  and  shall  not  be  seized, 
taken,  appropriated,  or  applied  by  any  lej,'al  or 
equitable  process,  nor  by  operation  of  law,  to  pay 
any  debts  or  liability  of  the  contract-holder  or 
any  benehciary  named  thereunder. 

Sec.  9.  Every  domestic  and  foreign  corporation 
doing  btisiuess  under  this  act  shall  annually,  on 
or  before  the  first  day  of  February,  file  with  the 
insurance  commissioner,  in  such  form  as  he  shall 
prescribe,  a  statement  of  its  affairs  for  the  year 
ending  on  the  preceding  thirty-first  day  of  De- 
cember. The  insurance  commissioner,  in  person 
i>v  by  dtily  authorized  deptity,  shall  have  the  pow- 
er of  examination  into  the  alfairs  of  any  domes- 
tic corporation  doing  business  or  claiming  to  do 
business  under  this  act,  at  any  time,  in  his  discre- 
rion,  and  shall  mal^e  such  examination  at  least 
Muce  a  year. 

Sec.  10.  If  the  insurance  commissioner,  after 
examination  of  the  affairs  of  a  corporation,  shall 
liud  that  such  corporation  is  not  doing  its  busi- 
ness in  conformity  to  this  act.  or  that  it  is  doing 
a  fraudulent  or  unlawful  business,  or  that  it  is  not 
carrying  out  its  terms  of  contract,  or  that  it  can- 
not within  three  months  from  the  date  of  notice  of 
<lefault  pay  its  obligations,  he  shall  cite  the  presi- 
dent, secretary,  manager,  or  general  agent  of  said 
corporation,  or  all  of  them,  to  appear  before  him 
I  stating  the  time  and  place),  to  show  cause  why 
the  authority  of  such  corporation  to  do  business 
shall  not  be  revoked;  and  if  they  cannot  show 
cause,  then  he  shall  report  the  facts  to  the  attor- 
ney-general of  this  State,  who  shall  commence 
proceedings  in  the  proper  court  to  restrain  said 
corporation  from  doing  any  further  business. 

Sec.  11.  No  policy  or  certificate  issued  by  any 
corporation  or  association  doing  business  under 
the  provisions  of  this  act  shall  lapse  or  be  lapsed 
for  the  nonpayment  of  any  assessments,  dues,  or 


t84  APPENDIX. 

premiums,  unless  the  corporation  or  association 
has  first  mailed  to  the  insured  under  such  policy 
or  certificate,  at  his  or  her  last  given  postoffice 
address,  a  notice  setting  forth  the  amount  to  be 
paid,  and  the  time  the  same  is  due  and  payable; 
and  such  notice  shall  be  mailed  at  least  fifteen 
ilays  before  the  assessment  is  due  (provided,  that 
such  corporations  doing  business  under  this  act  as 
collect  specific  amounts  at  specific  dates,  as  con- 
tained in  the  contract,  shall  not  be  compelled  to 
send  such  notices),  and  an  affidavit  made  by  the 
ofiicer,  booli-keeper,  or  clerk  of  any  such  corpora- 
tion having  charge  of  the  mailing  of  notices,  set- 
ting forth  the  facts  as  they  appear  on  the  records 
in  the  ofiice  of  the  said  corporation,  showing  that 
such  notice  was  mailed  and  the  date  of  mailing, 
shall  constitute  conclusive  evidence  of  the  mailing 
of  such  notice. 

Sec.  12.  The  fees  for  filing  statements,  certifi- 
cates, or  other  documents  required  by  this  act,  or 
for  any  service  or  act  of  the  insurance  commis- 
sioner, and  the  penalties  for  any  violation  of  this 
act,  shall,  except  as  otherwise  provided  herein,  be 
the  same  as  provided  in  the  laws  of  this  State 
relating  to  life  insurance  companies,  and  shall  be 
disposed  of  as  provided  by  such  laws. 

Sec.  13.  And  for  all  lawful  expenses  under  this 
act,  or  by  reason  of  any  of  its  provisions,  in  the 
prosecution  of  any  suit  or  proceedings,  or  other- 
wise, for  the  enforcement  of  the  provisions  of  this 
act,  the  insurance  corpmissioner  must  present 
bills,  duly  certified  by  him,  and  accompanied  with 
vouchers,  to  the  state  board  of  examiners,  who 
must  allow  the  same,  and  direct  payment  thereof 
be  made;  and  the  State  controller  shall  draw  war- 
rants therefor  on  the  State  treasurer  for  the  pay- 
ment of  the  same  to  the  insurance  commissioner, 
in  addition  to  the  ordinary  contingent  expense, 
which  warrants  shall  be  payable  out  of  the  gen- 
eral fund. 


APPENDIX.  786 

Sec.  14.  The  provisions  of  this  act  sliall  not  ap- 
ply to  secret  or  fraternal  societies,  lodges,  or  coun- 
cils, which  conduct  their  business  and  secure 
membership  on  the  lod.ue  system  exclusively,  hav- 
ing ritualistic  worlv  and  ceremonies  in  their  so- 
cieties, lodges,  or  councils,  nor  to  any  mutual  or 
benefit  association,  organized  or  formed  and  com- 
posed only  of  members  of  any  such  society,  lodge, 
or  council  exclusively. 

Sec.  15.  All  acts  and  parts  of  acts  in  conflict 
with  the  proA'isions  of  this  act  are  hereby  re- 
pealed. 

Sec.  16.    This  act  shall  take  effect  immediately. 


An  Act  to  provide  for  the  incorporation  of  mutual 
insurance  comijanies,  for  the  insurance  of  life 
and  health,  and  against  accidents. 

[xYpproved  April  2,  1866;  1865-6,  752.] 

§    8.     Capital  stock. 

§    9.     Return  of  guarantee  notes. 

§  10.     Impaired   capital— Assessment. 

This  act  was  incorporated  in  the  Civil  Code;  it 
was  amended  in  1880  as  follows: 

Capital  stoclv. 

Sec.  8.  Every  company  formed  or  existing  un- 
der this  act  shall  have  a  capital  stock  of  not  less 
than  one  hundred  thousand  dollars.  It  shall  not 
make  any  insurance  nor  transact  any  business  un- 
til its  capital  stock  shall  have  been  fully  paid  up 
in  cash.  The  board  of  directors  of  the  company,  or 
a  committee  of  the  directors  a]niointe<l  by  the 
board,  shall,  without  delay,  after  organizing,  pro- 
ceed to  obtain  the  subscriptions  required  to  com- 
plete the  capital  stock  of  tlie  company,  and  in  ol>- 
taining  such  subscription,  or  any  subscriptions  to 
capital  stock  afterward  authorized,  must  open 
books     therefor,     giving     public     notice     thereof. 


786  APPENDIX 

if  deemed  necessary  by  tliern  in  some  news- 
paper of  general  circulation  in  the  county 
in  which  the  principal  office  of  the  com- 
pany is  located;  such  books  shall,  in  either  case, 
be  kept  open  until  the  amount  of  capital  stock 
required  shall  have  been  subscribed.  If  more 
than  the  requisite  amount  is  subscribed,  the  stock 
shall  be  distributed  pro  rata  among  the  subscrib- 
ers. Any  subscription  may  be  rejected  by  the 
board  of  directors,  or  the  committee  thereof,  or 
by  either,  as  to  the  whole  or  any  part  thereof, 
and  shall  be,  so  far  as  rejected,  without  effect. 
[Amendment  approved  April  26,  1880;  1880,  229 
(Ban.  ed.  552).  Took  effect  from  passage;  affects 
only  corporations  formed  before  1873.] 
Return  of  guarantee  notes. 

Sec.  9.  Any  corporation  formed  or  existing  un- 
der this  act  may,  at  any  time,  return  to  the  mak- 
ers, their  assigns  or  heirs,  the  guarantee  notes 
held  by  said  corporation;  and  from  and  after  such 
return,  or  the  offer  thereof,  made  in  good  faith, 
the  corporation  shall  not  be  subject  to  any  of  the 
obligations  or  burdens  imposed  by  section  ten  of 
said  act  upon  said  corporation  and  in  favor  of  the 
malvers  of  such  notes.  [Amendment  approved 
April  26,  1880;  1880,  230  (Ban.  ed.  523).  Took  ef- 
fect from  passage;  affects  only  corporations  form- 
ed before  1873.] 
Impaired  capital— Assessment. 

Sec.  10.  Whenever,  at  any  time,  the  capital  of 
any  corporation  formed  or  existing  under  this  act 
shall  become  impaired,  it  shall  be  the  duty  of  the 
board  of  directors  at  once  to  levy  such  an  assess- 
ment upon  the  capital  stock,  whether  paid  up  or 
not,  as  may  be  necessary  to  make  good  such  im- 
pairment; and  such  assessment,  except  as  to  the 
amoimt  thereof,  shall  be  levied  and  collected  in 
the  manner  prescribed  by  sections  three  hundred 
and  thirty-one  to  three  hundred  and  forty-nine,  in- 
<,'lusive,  of  the  Civil  Code  of  this  State.  Every  such 


APPENDIX.  787 

corporation  may  increase  or  diminish  its  capital 
stock  in  the  mode  and  manner  prescribed  by  sec- 
tion three  hundred  and  fifty-nine  of  said  Civil 
Code.  [Amendment  approved  April  2G,  1880;  1880, 
230  (Ban.  ed.  52.3).  Tooli  effect  from  passage;  af- 
fects only  corporations  formed  before  1873.] 

The  act  of  April  20,  1880,  from  which  the  fore- 
going three   amendments  were  taken,   contained 
the  following-  additional  section: 
Construction  of  act. 

Sec.  4.  Nothing  in  this  act  shall  be  construed 
to  affect  any  corporation  formed  after  twelve 
o'clock  noon  on  the  day  upon  which  the  Civil 
Code  of  California  took  effect,  nor  shall  anything 
in  this  act  be  construed  to  revive  or  put  in  force 
any  part  of  the  act  of  which  it  is  amendatory,  be- 
yond what  was  intended  should  be  in  force  by  the 
provisions  of  section  two  hundred  and  eighty-eight 
of  the  Civil  Code  of  California. 


An  Act  to  provide  for  the  organization  and  man- 
agement of  county  fire  insurance  companies. 

[Approved  April  1,  1897;  Stats.  1897,  c.  271.] 

§    1.  Incorporation  of. 

§    2.  Articles  of  incorporation— Certificate. 

§    3.  Directors. 

§    4.  Officers. 

§    5.  Bonds. 

§    6.  Powers— By-laws. 

§    7.  Membership. 

§    8.  Risks. 

§    9.  Classifying  risks. 

§  10.  Property  outside  of  county. 

§  11.  Losses. 

§  12.  Idem.— Assessments. 

§  13.  Notice  of  assessments. 

§  14.  Action   of  assessment. 

§  15.  Annual  statement. 

§  16.  Withdrawal. 

§  17.  Report  of  officers. 

§  18.  Dissolution. 


788  APPENDIX. 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  Any  number  of  persons  not  less  than 
twenty-five,  residing  in  any  county  in  this  State, 
owning  insurable  property  aggregating  not  less 
than  fifty  thousand  dollars  in  value,  which  they 
desire  to  have  insured,  may  incorporate  for  the 
purpose  of  mutual  insurance  against  loss  or  dam- 
age by  fire. 

Sec.  2.  Such  persons  shall  file  with  the  insur- 
ance commissioner  a  declaration  of  their  inten- 
tion to  incorporate  for  the  purposes  expressed  in 
section  one  of  this  Act,  which  declaration  shall  be 
signed  by  all  of  the  incorporators,  and  shall  con- 
tain a  copy  of  the  articles  of  incorporation  pro- 
posed to  be  adopted.  The  insurance  commissioner 
shall  examine  the  proposed  articles  of  incorpora- 
tion, and,  if  they  conform  to  this  Act,  he  shall  de- 
liver to  such  persons  a  certificate  permitting  them 
to  incorporate  as  such  insurance  company.  Such 
certificate  shall  be  directed  to  the  clerk  of  the 
county  in  which  such  corporation  is  proposed  to 
be  organized,  and  shall  contain  a  copy  of  the  pro- 
posed articles  of  incorporation.  Upon  filing  with 
the  secretary  of  state,  the  certified  copies  of  the 
duly  executed  articles  of  incorporation,  as  re- 
quired by  section  two  hundred  and  ninety  of  the 
Civil  Code  of  the  State  of  California,  and  of  the 
certificate  above  provided  for,  the  secretary  of 
state  shall  thereupon  issue  a  certificate  of  incor- 
poration to  such  county  insurance  company,  and, 
upon  organizing  under  such  articles  of  incorpora- 
tion, such  county  fire  insurance  company  may 
carry  on  a  fire  insurance  business  as  hereinafter 
provided.  The  articles  of  incorporation  and  the 
charter  or  certificate  obtained  by  any  county  fire 
insurance  company  operating  under  the  provisions 
of  this  Act,  shall  be  subject  to  the  control  and 
modification  by  the  legislature  of  the  State  of 
California,     The  by-laws  and     all     amendments 


APPENDIX.  789 

thereto  shall  be  filed  with  the  insurance  commis- 
sioner within  ^xty  (60)  days  after  their  adoption. 

Sec.  3.  The  number  of  directors  shall  not  be 
less  than  (7)  seven,  nor  more  than  eleven  (11),  a 
majority  of  whom  shall  constitute  a  quorum  to  do 
business.  These  directors  shall  be  elected  from 
the  members  of  the  association  by  ballot,  and 
shall  hold  office  for  one  year,  or  until  their  suc- 
cessors are  elected  and  qualified.  The  annual 
meeting  of  the  members  of  the  company  shall  be 
on  the  second  Monday  in  January  of  each  year. 
In  the  election  of  the  first  board  of  directors  each 
member  shall  be  entitled  to  one  vote.  At  every 
subsequent  election,  every  person  insured  shall 
be  entitled  to  as  many  votes  as  there  are  directors 
to  be  elected,  and  an  equal  additional  number  for 
every  risk  or  risks  he  holds  in  the  company,  and 
he  may  cast  the  same  in  person  or  by  proxy,  dis- 
tributing them  among  the  directors  to  be  elected, 
or  among  a  less  number  of  directors,  or  cumu- 
lating them  upon  one  candidate,  as  he  shall  see 
fit. 

Sec.  4.  The  directors  shall  elect,  from  their  own 
number,  a  president  and  a  vice-president,  and 
shall  also  elect  a  treasurer  and  a  secretary,  who 
may  or  may  not  be  members  of  the  company.  All 
of  such  officers  hold  their  office  for  one  year  from 
the  date  of  their  election,  and  until  their  succes- 
sors are  elected  and  qualified. 

Sec.  5.  The  treasurer  and  secretary  shall  give 
bonds  to  the  company  for  the  faithful  perform- 
ance of  their  duties,  in  such  amounts  as  shall  bo 
prescribed  by  the  board  of  directors. 

Sec.  G.  Such  corporation  and  its  directors  shall 
possess  the  usual  powers,  and  be  subject  to  the 
usual  duties  of  corporations  and  directors  thereof, 
and  may  make  such  by-laws,  not  inconsistent  with 
the  constitution  and  the  laws  of  this  State,  as  may 
be  deemed  necessary  for  the  management  of  its 


790  APPENDIX. 

affairs,  in  accordance  with  the  provisions  of  this 
Act.  Also  to  prescribe  the  duties  of  its  officers 
and  to  fix  their  compensation,  and  to  alter  and 
amend  its  by-laws,  when  necessary. 

Sec.  7.  Any  person  owning  property  in  the 
county  for  which  any  such  company  is  formed 
may  become  a  member  of  such,  company  by  in- 
suring therein,  and  shall  be  entitled  to  all  the 
rights  and  privileges  appertaining  thereto,  and  no 
person  not  residing  in  the  county  in  which  the 
company  is  formed  shall  become  a  director  of  such 
company. 

Sec.  8.  Such  company  may  issue  policies  only 
on  detached  dwellings,  schoolhouses,  churches, 
barns  (except  livery  barn  and  hotel  barns),  and 
other  farm  buildings,  and  such  property  as  may 
be  contained  therein;  also,  other  property  on  the 
premises  owned  by  the  insured;  hay  and  grain 
in  stack  or  in  the  field,  and  live  stocli  on  the 
premises  of  the  insured,  anywhere  in  the  county, 
for  any  time  not  exceeding  five  years,  and  not  to 
extend  beyond  the  time  limited  for  the  existence 
of  the  charter,  and  for  an  amount  not  to  exceed 
four  thousand  five  hundred  dollars  on  any  one  risk; 
provided,  that  no  company  which  has  been  or- 
ganized more  than  six  months  shall  write  insur- 
ance subject  to  one  fire  exceeding  three  per  cent 
of  the  amount  at  risk  upon  the  books  of  such 
company.  All  persons  so  insured  shall  give  their 
obligation  to  the  company,  binding  themselves, 
their  heirs  and  assigns,  to  pay  their  pro  rata  share 
to  the  company  of  the  necessary  expense  and  of 
loss  by  fire  which  may  be  sustained  by  any  mem- 
ber thereof  during  the  time  for  which  their  re- 
spective policies  are  Avritten,  and  they  shall  also 
at  the  time  of  effecting  the  insurance  pay  such  a 
percentage  in  cash,  and  such  other  charges,  as 
may  be  required  by  the  rules  or  by-laws  of  the 
company. 


APPENDIX.  7»1 

Sec.  9.  All  such  companies  must  classify  tlie 
property  insured  tlierein  at  the  time  of  issuing 
policies  thereon  under  different  rates,  correspond- 
ing as  nearly  as  may  be  to  the  greater  or  less  risk 
from  fire  loss  which  may  be  attached  to  the  sev- 
eral kinds   of  property   insured. 

Sec.  10.  No  such  company  shall  insure  any 
property  beyond  the  limits  of  the  county  within 
which  the  company  is  organized,  nor  shall  any 
company  issue  policies  of  insurance  on  any  prop- 
erty within  the  limits  of  any  city  containing  over 
six  thousand  inhabitants  at  the  time  of  the  or- 
ganization of  such  company;  provided,  that  no 
dwelling  shall  be  insured  within  the  corporate 
limits  of  any  city  or  town  exposed  by  any  other 
building  within  one  hundred  feet,  or  by  any  other 
risk  other  than  a  dwelling  or  private  barn,  within 
two  hundred  feet  of  the  risk  assumed;  provided, 
that  the  amount  of  insurance  shall  not  exceed 
seventy-five  per  cent  of  the  value  of  the  property 
and  that  no  additional  insurance  shall  be  allowed. 

Sec.  11.  Every  member  of  such  company  who 
may  sustain  loss  or  damage  by  fire  shall  imme- 
diately notify  the  president,  or  in  his  absence,  the 
secretary  thereof,  stating  the  amount  of  damages 
or  loss  sustained  or  claimed,  and  if  not  more  than 
two  hundred  dollars,  then  the  president  and  secre- 
tary shall  proceed  to  ascertain  the  amount  of  such 
loss  or  damage,  and  adjust  the  same.  If  the  claim 
for  damage  or  loss  be  an  amount  greater  tlian  two 
hundred  dollars,  then  the  president  of  such  com- 
pany, or  in  his  absence,  the  vice-president,  or  in 
the  absence  of  both,  the  secretary  thereof,  shall 
forthwith  convene  the  board  of  directors  of  such 
company,  whose  duty  it  shall  be  when  convened 
to  appoint  a  committee,  of  not  less  than  three 
disinterested  members  of  such  company,  to  ascer- 
tain the  amount  of  such  damage  or  loss.  If  in 
either  case  there  is  a  failure  of  the  parties  to  agree 


792  APPENDIX. 

upon  the  amount  of  such  damage  or  loss,  they 
shall  submit  the  question  of  the  amount  of  such 
loss  to  arbitration.  The  president  of  the  company 
shall  appoint  one  disinterested  person  to  act  as  an 
arbitrator,  and  the  claimant  or  insured  shall  ap- 
point another,  and  if  such  two  arbitrators  fail  to 
agree  upon  the  amount  of  such  loss,  then  they 
shall  select  a  third  disinterested  person  to  act  with 
them.  Such  arbitrators  so  appointed  shall  have 
full  authority  to  examine  w^itnesses,  and  to  do  all 
other  things  necessary  to  the  proper  determina- 
tion of  the  amount  of  loss  sustained  by  the  claim- 
ant, and  shall  make  their  award  in  writing  to  the 
president  of  such  company,  and  such  award  so  as 
aforesaid  made  shall  be  final  as  to  the  amount 
of  the  loss  sustained. 

The  pay  of  the  said  committee  shall  be  three 
($3.00)  dollars  per  day  for  each  day's  services  so 
rendered,  and  five  cents  for  each  mile  necessarily 
traveled  in  the  discharge  of  their  duties,  which 
shall  be  paid  by  the  claimant,  unless  the  award  of 
such  committee  shall  exceed  the  sum  offered  by 
the  company  in  liquidation  of  such  loss  or  damage, 
in  which  case  such  expense  shall  be  paid  by  the 
company. 

Sec.  12.  When  the  amount  of  any  loss  shall 
have  been  ascertained,  which  exceeds  in  amount 
the  cash  funds  of  the  company,  the  president  shall 
convene  the  directors  of  said  company,  who  shall 
make  an  assessment  upon  all  the  property  to  tlie 
amount  for  which  each  several  piece  of  property 
is  insured,  taken  in  connection  with  the  rate  of 
premium  under  which  it  may  be  classified. 

Sec.  13.  It  shall  be  the  duty  of  the  secretai-y, 
whenever  such  an  assessment  shall  have  been 
made,  to  immediately  notify  every  person  holding 
a  risk  in  such  company,  personally,  by  an  agent. 
or  by  letter  directed  to  his  usual  postoffice  address, 
of  the  amount  of  such  loss,  and  the  sum  due  from 


APPENDIX.  79:? 

liim,  as  his  share  thereof,  and  of  the  time  and  to 
whom  such  payment  is  to  be  made;  but  such  time 
shall  not  be  less  than  thirty  days,  nor  more  than 
ninety  days,  from  the  date  of  such  notice. 

Sec.  14.  An  action  may  be  brought  a^Minst  any 
member  of  such  company  who  shall  neglect  or  re- 
fuse to  pay  any  assessment  made  upon  him  by  the 
provisions  of  this  act,  or  other  liabilities  due  the 
company,  and  the  directors  of  any  company  so 
formed  who  shall  willfully  refuse  or  neglect  to 
perform  the  duties  imposed  upon  them  by  law  or 
by  the  by-laws  of  the  company,  shall  be  liable  in 
their  individual  capacity  to  the  person  sustaining 
such  loss.  An  action  may  also  be  brought  and 
maintained  against  any  such  company  by  mem- 
bers thereof  for  losses  sustained  if  payment  is 
withheld  after  the  amount  of  such  losses  have 
been  determined,  and  is  due  by  the  terms  of  the 
policy. 

Sec.  15.  It  shall  be  the  duty  of  the  secretary 
to  prepare  an  annual  statement  showing  the  con- 
dition of  such  company  on  the  thirty-tirst  day  of 
December,  and  present  the  same  at  the  annual 
meeting. 

Sec.  16.  Any  member  of  such  company  may 
withdraw  therefrom  by  surrendering  his  policy  for 
cancellation  at  any  time  while  the  organization 
continues  the  business  for  Avhich  it  was  organized, 
by  giving  notice  in  writing  to  the  secretary  there- 
of, and  paying  his  share  of  all  claims  that  may 
exist  against  such  company;  provided,  that  the 
company  shall  have  power  to  cancel  or  terminate 
any  policy  by  giving  the  insured  tive  days'  writ- 
ten notice  to  that  effect,  and  returning  to  him  any 
excess  of  premium  he  may  have  paid  during  the 
term  of  the  policy,  over  the  cost  of  his  insurance, 
as  measured  by  the  rates  of  standard  lire  insur- 
ance companies  doing  business  in  this  State. 

Sec.  17.    It  shall  be  the  duty  of  the  president 

Civ.    Code— 67 


794  APPENDIX. 

jiQd  secretary,  within  thirty  days  after  the  first 
(hiy  of  January  in  each  year,  to  prepare,  under 
their  own  oath,  and  transmit  to  the  insurance 
commissioner,  a  statement  of  the  condition  of  the 
company  on  the  last  day  of  the  month  next  pre- 
ceding the  annual  meeting.  If,  upon  examination, 
the  insiu-ance  commissioner  finds  that  such  com- 
pany is  doing  business  correctly,  in  accordance 
with  the  provisions  of  this  act,  he  shall  thereupon 
furnish  the  company  his  certificate,  which  shall 
be  deemed  authority  to  continue  business  during 
the  ensuing  year,  subject,  however,  to  the  pro- 
visions of  this  act.  For  such  examination  and 
certificate  the  company  shall  pay  one  dollar.  Each 
company  shall  pay,  at  the  time  of  organization, 
five  dollars  to  the  insurance  commissioner,  for  all 
services  which  he  shall  render  in  the  matter  of 
organization. 

Sec.  18.  Any  such  company  may  be  proceeded 
^against  and  dissolved  in  the  manner  and  upon  the 
same  conditions  as  provided  in  case  of  other  in- 
surance companies  incorporated  in  this  State. 

Sec.  19.  All  acts  and  parts  of  acts  in  conflict 
with  this  act  are  hereby  repealed. 


IRRIGATION. 

Laws  relating  to.  see  General  Laws,  title  Irri- 
gation. 


APPENDIX.  7^ 


LIENS. 

Servants'  lien,  where  wages  not  paid,  see  ante, 
title  Corporations,  pp.  743,  744. 

An  Act  creating  a  lien  in  favor  of  owners  or  those 
in  charge  of  stallions,  jacks,  and  bulls  used 
for  propagating  purposes,  and  providing  for 
the  operation  of  such  lien. 

[Approved  March  11,  1891;  Stats.  1891,  p.  90.  J 

§  1.  Claim   to   be   filed— False    representations. 

§  2.  Suits  to  foreclose. 

§  3.  Attachment. 

§  4.  Duty  of  sheriff. 

§  6.  Sections  of  Code  of  Civil  Procedure. 

Section  1.  An j- owner  or  person  having  in  charge 
a  stallion,  jacli,  or  bull  used  for  propagating  pur- 
poses, shall  have  a  lien  for  the  agreed  price  for  the 
service  of  such  stallion,  jaclc.or  bull  upon  any  mare 
or  cow  served  for  pay  by  any  such  stallion,  jack, 
or  bull,  and  upon  the  offspring  of  such  service; 
provided,  that  the  owner  or  person  having  in 
charge  such  stallion,  jack,  or  bull  shall,  within 
ninety  days  after  such  service,  file  in  the  office  of 
the  county  recorder  of  the  county  where  such 
mare  or  cow  is  served  or  kept,  a  verified  claim 
containing  a  particular  description  of  the  mare  or 
cow  so  served,  the  date  and  place  of  serving,  the 
name  of  the  owner  or  reputed  owner  of  the  mare 
or  cow  so  served,  a  proper  description,  by  name 
or  otherwise,  of  the  stallion  or  jack  or  bull  per- 
forming such  service,  the  name  of  the  owner  or 
person  in  charge  thereof,  and  the  amount  of  the 
lien  claimed,  which  claim,  when  filed  as  aforesaid, 
shall  operate  as  notice  to  subsequent  purchasers 
and  incumbrancers  of  such  mare  or  cow  for  the 


796  APPENDIX. 

term  of  one  year  from  the  date  of  the  filing  of 
sucli  claim;  and,  provided,  that  any  willfully  false 
representations  concerning  the  breeding  or  pedi- 
gree of  such  stallion,  jack,  or  bull  made  or  pub- 
lished by  the  owner  or  person  in  charge  of  such 
stallion,  jack,  or  bull,  or  by  any  one  else  at  the 
request  or  instigation  of  such  owner  or  person  in 
charge,  shall  invalidate  any  lien  claimed  under  or 
hj  virtue  of  the  provisions  of  this  act. 

Sec.  2.  Suit  to  foreclose  any  lien  created  here- 
under may  be  brought  in  any  county  where  said 
mare,  cow,  or  offspring  from  such  service  may  be 
found,  and  the  plaintiff,  at  the  time  of  issuing 
summons,  or  at  any  time  afterwards  prior  to  the 
rendition  of  judgment  therein,  may  have  the  mare 
or  cow  upon  which  said  lien  subsists,  and  the  said 
offspring,  attached  as  further  security  for  the  pay- 
ment of  any  judgment  he  may  recover,  unless  the 
defendant  or  person  in  possession  of  such  mare, 
cow,  or  offspring  give  him  good  and  sufficient  se- 
curity to  pay  such  judgment,  in  which  event  the 
mare,  cow,  or  offspring  shall  be  forthwith  dis- 
charged by  the  sheriff'  from  such  attachment,  and 
from  the  lien  hereunder  created. 

Sec.  3.  The  clerk  of  the  court  must  issue  the 
writ  of  attachment  upon  receiving  an  affidavit  by 
or  on  behalf  of  the  plaintiff,  showing,— 

First.— That  the  defendant  is  indebted  to  the 
plaintiff  upon  a  demand  for  services  rendered  by 
the  stallion,  jack,  or  bull,  belonging  to  or  under 
charge  of  plaintiff,  upon  the  mare  or  cow  of  de- 
fendant, for  which  his  claim  has  been  duly  filed, 
in  accordance  with  section  one  of  this  act. 

Second. — That  the  sum  for  which  the  attach- 
ment is  asked  is  an  actual,  bona  fide  existing  debt, 
due  and  owing  from  the  defendant  to  the  plaintiff, 
and  that  the  attachment  is  not  sought  and  the  ac- 
tion is  not  prosecuted  to  hinder,  delay,  or  defraud 
any  creditor  or  creditors  of  the  defendant. 


APPENDIX.  797 

Sec.  4.  The  writ  must  be  directed  to  the  sherilf 
of  the  county  in  which  suit  is  brought,  and  must 
require  him  to  attach  the  mare  or  cow  specified 
in  such  lien,  and  the  offspring  of  sucli  service, 
unless  the  defendant  or  person  in  possession  of 
such  mare,  cow,  or  offspring  give  good  and  suffi- 
cient security  as  provided  in  this  act,  in  which 
case,  to  take  such  security  and  discharge  any  at- 
tachment he  may  have  made,  and  to  deliver  up 
such  mare,  cow,  or  offspring  to  defendant  or  to 
the  person  from  whom  he  has  fallen  the  same, 
who  shall  receive  the  same  free  from  the  lien 
upon  which  such  suit  is  brought. 

Sec.  5.  Sections  five  hundred  and  thirty-nine, 
eleven  hundred  and  eighty-nine,  eleven  hundred 
and  ninety-eight,  and  eleven  hundred  and  ninety- 
nine  of  the  Code  of  Civil  Procedure  are  hereby 
made  applicable  to  this  act. 

Sec.  G.  This  act  shall  take  effect  from  and  af- 
ter its  passage. 


An  Act  giving  a  lien  to  loggers  and  laborers,  em- 
ployed in  logging  camps,  upon  the  logs  cut  and 
hauled  by  the  persons  who  employ  them. 

[Approved  March  30,  1878;  1877-8,  747.] 

^  1.  Labor  with  logs,  lien  upon. 

§  2.  Lien  to  cease,   how  and  when. 

J  3.  Suits  to  be  commenced  in  proper  courts. 

§  4.  Plaintiff  to  have  lumber  attached. 

§  5.  Clerk  to  issue  writ. 

§  6.  Sheriff  to  attach  logs. 

§  7.  Sections  made  applicable. 

§  8.  Attachment,   how   made. 

§  9.  Where  lien  shall  extend. 

Labor  with  logs,  lien  upon. 

Section  1.    A    person  who    labors    at    cutting, 
hauling,  rafting,  or  driving  logs  or  lumber,  or  who 


798  APPENDIX. 

performs  any  labor  in  or  about  a  logging  camp 
necessary  for  the  getting  out  or  transportation  of 
logs  or  lumber,  shall  have  a  lien  thereon  for  the 
amount  due  for  his  personal  services,  which  shall 
take  precedence  of  all  other  claims  to  continue  for 
thirty  days  after  the  logs  or  lumber  an-ive  at  the 
place  of  destination,  for  sale  or  manufacture;  ex- 
cept as  hereinafter  provided.  [Amendment  ap- 
proved April  12,  1880;  1880,  38  (Ban.  ed.  191). 
Took  effect  from  passage.] 
Lien  to  cease,  how  and  when. 

Sec.  2.  The  lien  hereby  created  shall  cease  and 
determine  unless  the  claimant  thereof  shall,  with- 
in twenty  days  from  the  time  such  labor  shall 
have  been  completed,  file  and  record  in  the  ofiice 
of  the  county  recorder  of  the  county  where  such 
labor  was  performed  a  verified  claim,  containing  a 
statement: 

1.  Of  his  demand,  after  deducting  all  just  cred- 
its and  offsets; 

2.  The  time  within  which  labor  was  done; 

3.  The  name  of  the  person  or  persons  for  which 
the  same  was  done; 

4.  The  place  where  the  logs  or  timber  upon 
which  such  lien  is  claimed  are  believed  to  be  sit- 
uated, and  tlie  marks  upon  the  same; 

5.  The  reputed  owner  thereof;  and, 

6.  The  reputed  owner  of  the  land  from  which 
the  same  were  cut  and  hauled. 

Suits  to  be  commenced  in  proper  courts. 

Sec.  3.  All  liens  hereby  provided  for  shall  cease 
and  determine  unless  suit  to  foreclose  the  same 
shall  be  commenced  in  the  proper  court  within 
twenty-five  days  from  the  time  the  same  are  filed. 
[Amendment  approved  April  12,  1880;  Amend- 
ments 1880,  39  (Ban.  ed.  191).  Took  effect  from 
passage.] 


APPENDIX.  719 

Plaiutiff  to   liavo   lumber  attacLed. 

Sec.  4.  The  plaintilf  in  any  such  suit,  at  the 
time  of  issuing  the  summons,  or  at  any  time  after- 
ward, may  have  the  logs  or  timber  upon  whicli 
such  lien  subsists  attached,  as  further  security  for 
the  payment  of  any  judgment  he  may  recover,  un- 
less defendant  give  him  good  and  suthcient  secu- 
rity to  pay  such  judgment,  in  which  event  such 
logs  shall  be  forthwith  discharged  by  the  sheriff 
from  such  attachment,  and  from  the  lien  hereby 
created. 

Clerk  to  issue  writ. 

Sec.  5.  The  clerk  of  the  coiu-t  must  issue  tlie 
writ  of  attachment  upon  receiving  an  affidavit  by 
or  on  behalf  of  the  plaintiff,  showing: 

1.  That  defendant  is  indebted  to  the  plaintiff 
upon  a  demand  for  labor,  for  which  his  claim  has 
been  duly  filed  in  accordance  with  section  two 
of  this  act; 

2.  That  the  sum  for  which  the  attachment  is 
asked  is  an  actual  bona  fide  existing  debt,  due  and 
owing  from  the  defendant  to  the  plnintitf,  and 
that  the  attachment  is  not  sought,  and  the  action 
is  not  prosecuted,  to  hinder,  delay,  or  defraud  any 
creditor  or  creditors  of  the  defendant. 

Sheriff  to  attach  logs. 

Sec.  6.  The  writ  must  be  directed  to  the  sheriff 
of  the  county,  and  must  require  him  to  attach 
and  safely  keep  the  logs  and  timber  spocitied  In 
such  lien,  or  so  much  thereof  as  may  be  sufficient 
to  satisfy  plaintiff's  demand,  unless  the  defend- 
ant give  good  and  sufticient  security,  as  provided 
in  this  act,  in  which  case,  to  take  such  security 
and  discharge  any  attachment  he  may  have  made, 
and  to  deliver  up  such  logs  to  the  defendant,  who 
shall  receive  the  same  free  from  the  lien  upon 
which  such  suit  is  brought. 


800  APPENDIX. 

Sections  made  applicable. 

Sec.  7.  Sections  five  hundred  and  thirty-nine, 
eleven  hundred  and  eighty-nine,  eleven  hundred 
and  ninety-five,  eleven  hundred  and  ninety-seven, 
eleven  hundred  and  ninety-eight,  and  eleven  hun- 
dred and  ninety-nine  of  the  Code  of  Civil  Pro- 
cedure are  hereby  made  applicable  to  this  act. 
[Amendment  approved  March  8,  1887;  Stats.  1887, 
p.  53.] 
Attachment,  how  made. 

Sec.  8.  Such  attachment  shall  be  made  by  tak- 
ing such  logs  into  possession,  and  the  sheriff  shall 
make  an  inventory  and  return  of  his  proceedings 
as  directed  in  Chapter  lY.,  Title  VII.,  of  the  Code 
of  Civil  Procedure. 
Where  lien  shall  extend. 

Sec.  9.  The  lien  provided  for  by  this  act  shall 
in  no  case  extend  beyond  the  limits  of  the  county 
in  V7hich  the  logs  or  timber  in  controversy  were 
cut. 

Sec.  10.  This  act  shall  take  effect  and  be  in 
force  from  and  after  its  passage. 


An  Act  to  secure  the  wages  of  persons  employed 
as  laborers  on  threshing  machines. 

[Approved  March  12,  1885;  1885,  109.] 

Section  1.  Every  person  performing  work  or  la- 
bor of  iiuy  kind  in,  with,  about,  or  upon  any  thresh- 
ing machine,  the  engine,  horse-power,  wagons,  or 
appurtenances  thereof,  while  engaged  in  threshing, 
shall  have  a  lieu  upon  the  same  to  the  extent  of 
the  value  of  his  services. 

Sec.  2.  The  lien  herein  given  shall  extend  for 
ten  days  after  the  person  has  ceased  such  worlv 
or  labor. 


APPENDIX.  801 

Sec.  3.  If  judgment  shall  be  recovered  iu  any 
action  to  recover  for  said  services  for  work  or 
labor  performed,  and  said  property  shall  be  sold, 
the  proceeds  of  such  sale  shall  be  distributed  pro 
rata  to  all  judgment  creditors  who  have,  within 
ten  days,  begun  suits  to  recover  judgments  for  the 
amount  due  them  for  such  work. 

Sec.  4.  The  lien  shall  expire  unless  a  suit  to  re- 
cover the  amount  of  the  claim  is  brought  within 
ten  days  after  the  party  ceases  work. 


LODGINGHOUSES. 


An  Act  concerning  lodginghouses  and  sleeping 
apartments  within  the  limits  of  incorporated 
cities. 

[Approved  April  3,  1876;  1875-6,  759.] 

§  1.    Number  of  cubic  feet. 

§  2.    Misdemeanor. 

§  3.    Buildings  excepted. 

Number  of  cubic  feet  for  each  person. 

Section  1.  Every  person  who  owns,  leases,  lets, 
or  hires,  to  any  person,  or  persons,  any  room 
or  apartment  in  any  building,  house,  or 
other  structure  within  tlie  limits  of  any  in- 
corporated city,  or  city  and  county,  with- 
in the  State  of  California,  for  the  purpose  of 
a  lodging  or  sleeping  apartment,  which  room  or 
apartment  contains  less  than  five  hundred  cubic 
feet  of  space,  in  the  clear,  for  each  person  so  oc- 
cupying such  room  or  apartment,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall,  upon  con- 
viction thereof,  be  punished  by  a  fine  of  not  less 
than  fifty  (50)  dollars  or  more  than  five  hundred 
(500)  dollars,  or  by  imprisonment  in  the  county 
jail,  or  by  both  such  fine  or  imprisonment. 


802  APPENDIX. 

Misdemeanor. 

Sec.  2.  Any  person  or  persons  found  sleeping  or 
lodging,  or  who  hires  or  uses  for  the  purpose  of 
sleeping  in  or  lodging  in  any  room  or  apartment 
which  contains  less  than  five  hundred  (500)  cubic 
feet  of  space,  in  the  clear,  for  each  person  so  occu- 
pying such  room  or  apartment,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall,  upon  con- 
viction, be  punished  by  a  fine  of  not  less  than  ten 
(10)  or  more  than  fifty  (50)  dollars,  or  by  both 
such  fine  and  imprisonment. 

Buildings  excepted. 

Sec.  3.  It  shall  be  the  duty  of  the  chief  of  police 
(or  such  other  person  to  whom  the  police  powers 
of  a  city  are  delegated)  to  detail  a  competent  and 
qualified  officer  or  officers  of  the  regular  force  to 
examine  into  any  violation  of  any  of  the  pro- 
visions of  this  act,  and  to  arrest  any  person  guilty 
of  any  such  violation. 

Sec.  4.  The  provisions  of  this  act  shall  not  be 
construed  to  apply  to  hospitals,  jails,  prisons,  in- 
sane asylums,  or  other  public  institutions. 

Sec.  5.  All  acts  or  parts  of  acts  in  conflict  with 
the  provisions  of  this  act  are  hereby  repealed. 

Sec.  6.  This  act  shall  talie  effect  and  be  in  force 
from  and  after  its  passage. 


I 


MECHANICS'   INSTITUTES.    See  ante,  p.  737. 

MINES  AND  MINING. 

An  Act  for  the  protection  of  miners. 

[Stats.  1871-72,  p.  413.     Enacting  clause.] 

§  1.    Protection  of  miners. 

§  2.    Escape  shaft. 

§  3.    Liabilities.     Damages. 


APPENDIX.  803 

Section  1.  It  shall  not  be  lawful  for  any  corpo- 
ration, association,  owner,  or  owners  of  any 
quartz  mining  claims  within  the  State  of  Califor- 
nia, where  such  corporation,  association,  owner,  or 
owners  employ  twelve  men  daily,  to  sinlv  down 
into  such  mine  or  mines  any  perpendicular  shaft 
or  incline  beyond  a  depth  from  the  surface  of 
three  hundred  feet  without  providing  a  second 
mode  of  egress  from  such  mine,  by  shaft  or  tun- 
nel, to  connect  with  the  main  shaft  at  a  depth  of 
not  less  than  one  hundred  feet  from  the  surface. 

Sec.  2.  It  shall  be  the  duty  of  each  corporation, 
association,  owner,  or  owners  of  any  quartz  mine 
or  mines  in  this  State,  where  it  becomes  necessary 
to  work  such  mines  beyond  the  depth  of  three 
hundred  feet,  and  where  the  number  of  men  em- 
ployed therein  daily  shall  be  twelve  or  more,  to 
proceed  to  sink  another  shaft  or  construct  a  tunnel 
so  as  to  connect  with  the  main  working  shaft  of 
such  mine  as  a  mode  of  escape  from  underground 
accident  or  otherwise.  And  all  corporations,  asso- 
ciations, owner,  or  owners  of  mines  as  aforesaid, 
working  at  a  greater  depth  than  three  hundred 
feet,  not  having  any  other  mode  of  egress  than 
from  the  main  shaft,  shall  proceed  as  herein  pro- 
vided. 

Sec.  3.  When  any  corporation,  association,  own- 
er, or  owners  of  any  quartz  mine  in  this  State, 
shall  fail  to  provide  for  the  proper  egress  as  here- 
in contemplated,  and  where  any  accident  shall  oc- 
cur, or  any  miner  working  therein  shall  be  hurt 
or  injured  and  from  such  injury  miglit  have  es- 
caped if  the  second  mode  of  egress  had  existed, 
such  corporation,  association,  owner,  or  owners  of 
the  mine  where  the  injuries  shall  have  occurred 
shall  be  liable  to  the  person  injured  in  all  dam- 
ages that  may  accrue  by  reason  thereof;  and  an 
action  at  law  in  a  court  of  competent  jurisdiction 
may  be  maintained  against  the  owner  or  owners 
of  such  mine,  which  owners  shall  be  jointly  or 


804  APPENDIX. 

severally  liable  for  such  damages.  And  where 
death  shall  ensue  from  injuries  received  from  any 
negligence  on  the  part  of  the  owners  thereof  by 
reason  of  their  failure  to  comply  with  any  of  the 
provisions  of  this  act,  the  heirs  or  relatives  sur- 
viving the  deceased  may  commence  an  action  for 
the  recovery  of  such  damages  as  provided  by  an 
act  entitled  an  act  requiring  compensation  for 
causing  death  by  wrongful  act,  neglect,  or  default, 
approved  April  twenty-sixth,  eighteen  hundred 
and  sixty-two. 

Sec.  4.  This  act  shall  talie  effect  and  be  in  force 
six  months  from  and  after  its  passage.  [Approved 
March  16,  1872.] 


An  Act  supplemental  to  an  act  entitled  "An  Act 
concerning  corporations,"  passed  the  twenty- 
second  of  April,  one  thousand  eight  hundred 
and  fifty. 

[Approved  March  21,  1872;  1871-2,  443.] 

§  1.  Petition  for  removal  of  officers. 

S  2.  Organization  of  meeting. 

§  3.  Ballot  to   supply   vacancies. 

§  4.  Certificate  of  election.  , 

§  5.  Fees   of   county  clerk. 

Petition  for  removal  of  officers. 

Section  1.  On  petition  of  the  majority  of  the 
shareholders  of  any  corporation  formed  for  the 
purpose  of  mining  to  the  county  judge  of  the  coun- 
ty where  said  corporation  has  its  principal  place 
of  business,  verified  by  the  signers,  to  the  effect 
that  they  are  severally  the  holders  on  the  books 
of  the  company  of  the  number  of  shares  set  oppo- 
site their  signatures  to  the  foregoing  petition,  the 
county  judge  shall  issue  his  notice  to  the  share- 
holders of  said  company  that  a  meeting  of  the 
shareholders  Avill  be  held,   stating  the  time,   not 


APPENDIX.  805 

less  than  five  nor  more  than  ten  days  after  the 
first  publication  of  such  notice,  and  the  place  of 
meeting-  within  said  county,  and  the  object  to  be 
to  take  into  consideration  the  removal  of  officers  of 
said  company;  which  notice,  si.srnod  by  the  sai<l 
county  judge,  shall  be  published  daily  in  one  or 
more  daily  newspapers  publishel  in  said  county  for 
at  least  five  days  before  the  time  for  the  meet- 
ing. 
Organization  of  meeting. 

Sec.  2,    At  the  time  and  place  appointed  by  said 
notice,  those  claiming  to     be     shareholders  who 
shall  assemble  shall  proceed  to  organize  by  the 
appointment   of   a  chairman   and   secretary,   and 
thei'eupon  those  claiming  to  be  shareholders  shall 
present  proof  thereof,  and  only  those  showing  a 
right  to  vote  shall  take  part  in  the  further  pro- 
ceedings.   If  it  appears  that  at  the  time  appointed, 
or  within  one  hour  thereafter,  shareholders  of  less 
than  one-half  the  shares  are  present,  no  further 
proceedings  shall  be  had;  but  the  meeting  shall 
be  ipso  facto  dissolved;  provided,  however,  that  by 
a  vote  of  the  holders  of  the  majority  of  the  capital 
stock  of  the  corporations  aforesaid  the  board  of 
trustees  may  be  required  to  furnish  to  the  meet- 
ing a  written  detailed  statement  and  account  of 
the  affairs,  business,  and  property  of  the  corpora- 
tion; but  if  the  holders  of  a  majority  of  the  shares 
are  present,  they  shall  proceed  to  vote,  the  secre- 
tary calling  the  roll,  and  the  members  voting  yea 
or  no,  as  the  case  may  be.     The  secretary  shall 
enter  the  same  upon  his  list,  and  when  he  has  add- 
ed up  the  list  and  stated  the  result,  he  shall  sign 
the  same  and  hand  it  to  the  chairman,  who  shall 
sign  the  same  and  declare  the  result.     [Amend- 
ment approved  April  1.  1ST6;  AmendmtMits  ISTo-O. 
780.    Took  effect  from  passage.] 
Ballot  to  supply  vacancies. 
Sec.  3.    If  the  result  of  the  vote  is  that  the  hold 

Civ.   Code-fi8 


80«  APPENDIX. 

ers  of  a  majority  of  all  the  shares  of  the  com- 
pany are  in  favor  of  the  removal  of  one  or  more 
of  the  officers  of  the  company,  the  meeting  shall 
then  proceed  to  ballot  for  officers  to  supply  the 
vacancies  thus  created.  Tellers  shall  be  appoint- 
ed by  the  chairman,  who  shall  collect  the  ballots 
and  deliver  them  to  the  secretary,  who  shall 
count  the  same  in  open  session,  and  having  stated 
the  result  of  the  count  in  writing,  shall  sign  the 
same  and  hand  it  to  the  chairman,  who  shall  an- 
nounce the  result  to  the  meeting. 
Certificate  of  election. 

Sec.  4.  A  report  of  the  proceedings  of  the  meet- 
ing shall  be  made  in  writing,  signed  by  the  chair- 
man and  secretary,  and  verified  by  them,  and  de- 
livered to  the  county  judge,  who  shall  thereupon 
issue  to  each  person  chosen  a  certificate  of  his 
election,  and  shall  also  issue  an  order  requiring 
that  all  books,  papers,  and  all  property  and  effects 
be  immediately  delivered  to  the  officers  elect;  and 
the  petition  and  report,  indorsed  with  the  date 
and  fact  of  the  issuance  of  such  certificate  and 
order,  shall  be  delivered  to  the  county  clerk,  to  be 
by  him  filed  in  his  office,  and  thereafter  the  per- 
sons thus  elected  officers  shall  be  the  duly  elected 
officers,  and  hold  office  until  the  next  regular  an- 
nual meeting,  unless  removed  under  the  pro- 
visions thereof. 
Fees  of  county  clerk. 

Sec.  5.  For  all  services  in  these  proceedings 
the  county  clerk  shall  receive  ten  dollars  on  the 
issuance  of  the  notice  and  ten  dollars  on  the  is- 
suance of  the  certificates. 

Sec.  6.    All  acts  or  parts  of  acts  conflicting  with 
this  act  are  hereby  repealed. 
Sec.  7.    This  act  shall  take  effect  immediately. 


APPENDIX.  807 


An  Act  for  the  better  protection  of  the  stock- 
holders in  corporations  formed  under  the  laws 
of  the  State  of  California  for  the  purpose  of 
carrying  on  and  conducting  the  business  of 
mining. 

[Approved  March  30,  1874;  1873-4,  8GG.] 

§  1.     Books— Keeping    open    to    inspection— Posting    monthly 

balances. 
§  2.     Examination  of  grounds. 
^  3.    Penalty. 

Books  of  mining  corporations. 

Section  1.  It  shall  be  the  duty  of  the  secretnry 
of  every  corporation  formed  for  the  purpose  of 
mining,  or  conducting  mining  in  California,  to 
keep  a  complete  set  of  books  showing  all  receipts 
and  expenditures  of  such  corporation,  the  sources 
of  such  receipts,  and  the  objects  of  such  expend- 
itures, and  also  all  transfers  of  stock.  All  books 
and  papers  shall,  at  all  times  during  business 
hours,  be  open  to  the  inspection  of  any  bona  tide 
stockholder;  and  if  any  stockholder  shall  at  any 
time  so  request  it  shall  be  the  duty  of  the  secre- 
tary to  attend  at  the  office  of  said  company  at 
least  one  hour  in  the  day  out  of  regular  business 
hours,  and  exhibit  such  books  and  papers  of  the 
company  as  such  stockholder  may  desire,  who  shall 
be  entitled  to  be  accompanied  by  an  expert:  nn<l 
he  shall  also  be  entitled  to  make  copies  or  ex- 
tracts from  any  such  books  or  papers.  Any  stock- 
holder, may  at  reasonable  hours,  have  permission 
to  examine  such  mining  property,  and  he  shall  be 
entitled  to  be  accompanied  by  an  expert  to  ex- 
amine such  property,  to  take  samples,  and  to  make 
such  other  examination  as  he  may  deem  neces- 
sary. It  shall  be  the  duty  of  the  directors,  on  the 
second  Mondav  of  each  and  every  month,  to  cause 


-808  APPENDIX. 

to  be  made  an  itemized  account  or  balance  slieet 
for  the  previous  month,  embracing  a  full  and  com- 
plete statement  of  all  disbursements  and  receipts, 
showing  from  what  sources  such  receipts  were  de- 
rived, and  for  what  and  to  whom  such  disburse- 
ments or  payments  were  made,  and  for  what  ob- 
ject or  purpose  the  same  were  made;  also  all  in- 
debtedness or  liabilities  incurred  or  existing  at  the 
time,  and  for  what  the  same  were  incurred,  and 
the  balance  of  money,  if  any,  on  hand.  Such  ac- 
count or  balance  sheet  shall  be  verified  under 
oath  by  the  president  and  secretary,  and  posted  in 
some  conspicuous  place  in  the  office  of  the  com- 
pany. It  shall  be  the  duty  of  the  superintendent, 
on  the  first  Monday  of  each  month,  to  file  with 
the  secretary  an  itemized  account,  verified  under 
oath,  showing  all  receipts  and  disbursements 
made  by  him  for  the  previous  month,  and  for 
what  said  disbursements  were  made.  Such  ac- 
count shall  also  contain  a  verified  statement  show- 
ing the  number  of  men  employed  under  him,  and 
for  what  purpose,  and  the  rate  of  wages  paid  to 
each  one.  He  shall  attach  to  such  account  a  full 
and  complete  report,  under  oath,  of  the  work 
done  in  said  mine,  the  amount  of  ore  extracted, 
from  what  part  of  mine  tal^en,  the  amount  sent 
to  mill  for  reduction,  its  assay  value,  the  amount 
of  bullion  received,  the  amount  of  bullion  shipped 
to  the  office  of  the  company  or  elsewhere,  and  the 
amount,  if  any,  retained  by  the  superintendent. 
It  shall  also  be  his  duty  to  forward  to  the  office 
of  the  company  a  full  report,  under  oath,  of  all 
discoveries  of  ores  or  mineral-bearing  quartz  made 
in  said  mine,  whether  by  boring,  drifting,  sinking, 
or  otherwise,  together  with  the  assay  value  there- 
of. All  accounts,  reports,  and  correspondence 
from  the  superintendent  shall  be  kept  in  some 
conspicuous  place  in  the  office  of  said  company, 
and  to  be  open  to  the  inspection  of  all  stockhold- 


APPENDIX.  809 

ers;  provided,  that  this  section  shall  apply  only  to 
mining-  corporations  whose  stock  is  listed  and  of- 
fered for  sale  at  public  exchange,  and  shall  not 
apply  to  mining  corporations  whose  stock  is  not 
listed  in  the  public  exchange,  and  is  not  offered 
for  public  sale. 
Examination  of  grounds. 

Sec.  2.  Any  bona  fide  stockholder  of  a  corpora- 
tion formed  under  the  laws  of  this  State  for  the 
purpose  of  mining,  shall  be  entitled  to  visit,  ac- 
companied by  his  expert,  and  examine  the  mine 
or  mines  owned  by  such  corporation,  and  every 
part  thereof,  at  any  time  he  may  see  fit  to  make 
such  visit  and  examination;  and  when  such  stock- 
holder shall  make  application  to  the  president  of 
such  corporation,  he  shall  immediately  cause  the 
secretary  thereof  to  issue  and  deliver  to  such  ap- 
plicant an  order,  under  the  seal  of  the  corporation, 
directed  to  the  superintendent,  commanding  him 
to  show  and  exhibit  such  parts  of  said  mine  or 
mines  as  the  party  named  in  said  order  may  de- 
sire to  visit  and  examine.  It  shall  be  the  duty 
of  the  superintendent,  on  receiving  such  order, 
to  furnish  such  stockholder  every  facility  for  mak- 
ing a  full  and  complete  inspection  of  said  mine 
or  mines,  and  of  the  workings  therein;  it  shall  be 
his  duty  also  to  accompany  said  stockholder, 
either  in  person  or  to  furnish  some  person  famil- 
iar with  said  mine  or  mines  to  accompany  him  in 
his  visit  to  and  through  such  mine  or  mines,  and 
every  part  thereof.  In  case  of  the  failure  or  re- 
fusal of  the  superintendent  to  obey  such  order, 
such  stockholder  shall  be  entitled  to  recover  in 
any  court  of  competent  jurisdiction,  against  said 
corporation,  the  sum  of  one  thousand  dollars  and 
traveling  expenses  to  and  from  said  mine  as  li- 
quidated damages,  together  Avith  costs  of  suit.  In 
case  of  such  refusal,  it  shall  be  the  duty  of  the 
directors  of  such  corporation  forthwith  to  remove 


^10  APPENDIX. 

the  officer  so  refusing,  and  thereafter  he  shall  not 
be  employed,  directly  or  indirectly,  by  such  corpo- 
ration, and  no  salary  shall  be  paid  to  him. 
[Amendment  approved  April  23,  1880;  Amend- 
ments 1880,  135  (Ban.  ed.  400).  Tooli  effect  from 
passage;  repealed  conflicting  acts.] 
Penalty. 

Sec.  3.  In  case  of  the  refusal  or  neglect  of  the 
president  to  cause  to  be  issued  by  the  secretary 
the  order  in  the  second  section  of  this  act  men- 
tioned, such  stoclvholder  shall  be  entitled  to  re- 
cover against  said  president  the  sum  of  one  thou- 
sand dollars  and  costs,  as  provided  in  the  last  sec- 
tion. In  case  of  the  failure  of  the  directors  to 
have  the  reports  and  accounts  current  made  and 
posted  as  in  the  first  section  of  this  act  provided, 
they  shall  be  liable,  either  severally  or  jointly,  to 
an  action  by  any  stoclvholder  in  any  court  of  com- 
petent jurisdiction  complaining  thereof,  and  on 
proof  of  such  refusal  or  failure,  such  complaining 
stoclvholder  shall  recover  judgment  for  actual 
damages  sustained  by  him.  with  costs  of  suit. 
And  each  of  such  defaulting  directors  shall  also 
be  liable  to  removal  for  such  neglect. 

Sec.  4.  All  acts  in  conflict  with  the  provisions 
of  this  act  are  hereby  repealed. 


An  Act  for  the  further  protection  of  stockholders 
in  mining  companies. 

[Approved  April  23,  1880;  1880,  131  (Ban.  ed.  398).] 

§  1.     Sale  or  mortgage  of  property. 

§  2.     Stock  to  be  in  name  of  real  owner. 

§  3.     Books,  when  to  close— Stock,  how  voted. 

Directors  not  to  sell,  etc.,  unless  two-thirds  of  cap- 
ital stock  consent. 
Section  1.    It   shall   not   be   lawful   for   the   di- 


APPENDIX.  gU 

rectors  of  any  mining  corporation  to  sell,  lease, 
mortgage,  or  otherwise  dispose  of  the  whole  or 
any  part  of  the  mining  ground  owned  or  held  by 
-^uch  corporation,  nor  to  purchase  or  obtain  in 
uuy  way  (except  by  location)  any  additional 
mining  ground,  unless  such  act  be  ratified  by 
I  lie  holders  of  at  least  two-thirds  of  the  stock 
of  such  corporation  then  outstanding.  Such  rati- 
fication may  be  made  either  in  writing,  signed  and 
aclvuowledged  by  such  stockholders,  or  by  resolu- 
Tiun,  duly  passed  at  any  regularly  called  stock- 
holders' meeting.  The  certificate  of  the  secretary 
of  any  mining  corporation  reciting  such  ratifica- 
tion at  a  stockholders'  meeting,  or  the  names  of 
stockholders  with  the  amount  of  stock  held  by 
each,  and  the  total  stock  outstanding,  signed  and 
acknowledged  by  him  in  the  manner  provided  for 
aelvuowledgments  to  conveyances  of  real  property. 
may  be  attached  to  or  indorsed  upon  any  deed. 
mortgage,  conveyance,  or  other  instrument,  matle 
imder  this  act  and  recorded  with  such  deed,  con- 
veyance, or  other  instrument,  and  the  recitals  con- 
tained in  such  certificate,  or  the  duly  recorded 
copy  thereof,  are  made  prima  facie  evidence  of 
their  truthfulness  for  all  purposes  whatsoever; 
provided,  that  no  one  except  a  stockholder  in  any 
such  corporation,  shall  be  permitted  to  urge  any 
objection  to  the  acquisition  of  any  additional 
ground  or  other  property  by  such  corporation. 
[Amendment  approved  March  9,  1S97:  Stats.  1897, 
c.  92.] 
Stock  to  be  in  name  of  real  owner  or  trustee. 

Sec.  2.  All  stock  in  each  and  every  mining  c«»r- 
poration  in  this  State  shall  stand  in  the  books  of 
said  company,  in  all  cases,  in  the  names  of  the 
real  owners  of  such  stock,  or  in  the  name  of  the 
trustees  of  such  real  owners:  but  in  every  case 
where  such  stock  shall  stand  in  the  name  of  a 
trustee,  the  party  for  whom  he  holds  such  stock 


812  1  APPENDIX. 

in  trust  shall  be  designated  upon  said  books,  and 
also  in  the  body  of  the  certificate  of  such  stock. 
Books,  when  to  close— Stock,  how  voted. 

Sec.  3.  It  shall  not  be  lawful  for  any  such  cor- 
poration, or  the  secretary  thereof,  to  close  the 
books  of  said  corporation  more  than  two  days 
prior  to  the  day  of  any  election.  At  such  election 
the  stock  of  said  corporation  shall  be  voted  by  the 
bona  fide  owners  thereof,  as  shown  by  the  books 
of  said  corporation,  unless  the  certificate  of  stock, 
duly  indorsed,  be  produced  at  such  election,  in 
which  case  said  certificates  shall  be  deemed  the 
highest  evidence  of  ownership,  and  the  holder 
thereof  shall  be  entitled  to  vote  the  same. 

Sec.  4.  All  acts  and  parts  of  acts  in  conflict 
with  this  act  are  hereby  repealed. 

Sec.  5.  This  act  shall  take  effect  from  and  after 
its  passage. 


ORPHANS. 

See  ante,  title  Infancy 


RAILKOADS. 


An  Act  providing  for  the  sale  of  railroad  and 
other  franchises  in  municipalities,  and  relative 
to  granting  of  franchises. 

[Approved  March  23,  1893;  Stats.  1893,  p.  288.] 

Section  1.  Every  franchise  or  privilege  to  erect 
or  lay  telegraph  or  telephone  wires,  to  con- 
struct or  operate  railroads  along  or  upon 
any  public  street  or  highway,  or  to  ex- 
ercise    any     other      privilege      whatever     here- 


APPENDIX.  813 

after  proposed  to  be  granted  by  the  board  of 
supervisors,  or  other  governing  or  legislative  body 
of  any  county  or  district  within  this  State,  ex- 
cept renewals  of  franchises  or  privileges  for 
wharves,  chutes,  or  piers,  in  counties  outside  of 
I  he  limits  of  incorporated  cities  or  towns,  shall  be 
1  ranted  upon  the  conditions  in  this  act  provided, 
;ind  not  otherwise.  The  fact  that  an  application 
for  such  franchise  or  privilege  has  been  made  to 
-iich  board  of  supervisors  or  other  governing  or 
legislative  body,  together  with  a  statement  that  it 
is  proposed  to  grant  the  same  must  first  be  ad- 
vertised in  one  or  more  dailj^  newspapers  in  the 
county  or  district  wherein  the  said  franchise  or 
privilege  is  to  be  exercised.  If  there  be  no  daily 
newspaper  published  in  the  district  wherein  the 
said  franchise  or  privilege  is  to  be  exercised,  then 
the  publication  must  be  made  in  some  other  daily 
newspaper  of  the  county,  and  if  there  be  no  daily 
newspaper  published  in  the  county  wherein  the 
said  franchise  or  privilege  is  to  be  exercised,  then 
the  publication  must  be  made  in  a  daily  newspa- 
per published  in  an  adjoining  county.  Such  ad- 
vertisements must  continue  every  day  for  at  least 
ten  days,  and  must  commence  at  least  thirty  days 
before  any  further  action  of  the  board  of  super- 
visors or  other  governing  or  legislative  body.  The 
advertisement  must  state  the  character  of  the 
franchise  or  privilege  proposed  to  be  granted,  the 
term  of  its  continuance,  and,  if  a  street  railroad, 
the  route  to  be  traversed,  and  the  day  on  which 
tenders  will  be  received  for  the  same.  On  the 
day  so  stated,  the  board  or  other  governing  or  leg- 
islative body  herein  mentioned,  must  meet  in  open 
session  and  read  the  tenders.  The  franchise  or 
privileges  must  then  be  awarded  to  the  highest 
bidder;  provided,  however,  that  nothing  in  tliis 
section  shall  affect  a  special  privilege  grante<i  for 


814  APPENDIX. 

a  shoi-ter  term  than  two  years.  [Amendment  ap- 
proved March  19,  1897;  Stats.  1897,  c.  116.] 

See.  2.  Any  member  of  any  board  of  super- 
visors, common  council,  or  other  governing  or  leg- 
islative body  of  any  county,  city  and  county,  city, 
town,  or  district  of  this  State,  who,  by  his  vote, 
violates  or  attempts  to  violate  the  provisions  of 
this  act  or  any  of  them,  shall  be  guilty  of  a  mis- 
demeanor and  of  malfeasance  in  office,  and  be 
deprived  of  his  office  by  the  decree  of  a  court  of 
competent  jurisdiction,  after  trial  and  conviction. 

Sec.  3.    This  act  shall  take  effect  immediately. 


An  Act  providing  for  the  sale  of  street  railroad 
and  other  franchises  in  municipalities,  and 
providing  conditions  for  the  granting  of  such 
franchises  by  the  legislative  or  other  govern- 
ing bodies,  and  repealing  conflicting  acts. 

[Approved  March  13,  1897.] 

§  1.     Sale  of  franchises. 

§  2.     Extension  of  existing  franchises. 

§  3.     Misdemeanor. 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  Every  franchise  or  privilege  to  erect 
or  lay  telegraph  or  telephone  wires,  to  construct 
or  operate  street  railroads,  upon  anj^  public  street 
or  highway,  to  lay  gas  or  water  pipes,  to  erect 
poles  or  Avires  for  transmitting  electric  power,  or 
for  lighting  purposes,  along  or  upon  any  public 
street  or  highway,  or  to  exercise  any  other  priv- 
ilege whatever  hereafter  proposed  to  be  granted 
by  the  board  of  supervisors,  board  of  trustees, 
common  council,  or  other  governing  or  legislative 
body  of  any  city  and  county,  city,  or  town  within 


APPENDIX.  816 

this  State,  except  steam  railroads,  telegraph  lines, 
and  renewal  of  franchises  for  piers,  chutes,  and 
wharves,  shall  be  granted  upon  the  conditions  in 
this  act  provided,  and  not  otherwise.  The  fact 
that  an  application  for  such  franchise  or  privilege 
has  been  made  to  such  board  of  supervisors, 
l»oard  of  trustees,  common  council,  or  other  gov- 
vrning  or  legislative  body,  together  with  a  state- 
ment that  it  is  proposed  to  grant  the  same,  must 
hrst  be  advertised  in  one  or  more  newspapers  of 
the  citj'  and  county,  city,  or  town,  wherein  the 
said  franchise  or  privilege  is  to  be  exercised.  Such 
advertisement  must  state  that  bids  will  be  re- 
•  eived  for  such  franchise,  and  that  it  will  be 
awarded  to  the  highest  bidder,  and  such  adver- 
tisement must  be  published  in  such  daily  news- 
paper once  a  day  for  ten  successive  days,  and  if 
there  be  no  daily  newspaper  published  in  such 
county,  city  and  county,  or  city,  then  it  shall  be 
published  in  a  weelvly  newspaper  published  in 
such  county,  city  and  county,  or  city,  once  a  week 
for  four  weeks,  and  in  either  case  the  full  ad- 
vertisement must  be  completed  not  less  than 
twenty  nor  more  than  thirty  days  before  any  fur- 
ther action  of  the  board  of  supervisors,  board  of 
trtistees,  common  council,  or  other  governing  or 
legislative  body.  The  advertisement  must  state 
the  character  of  the  franchise  or  privilege  pro- 
posed to  be  granted,  the  term  of  its  continuance. 
and  if  a  street  railroad,  the  route  to  be  traversed: 
that  sealed  bids  or  tenders  will  be  received  up  to 
a  certain  hour  on  a  day  named  therein,  and  a  fur- 
ther statement  that  no  bids  will  be  received  of 
a  single  sum  or  amount  stated,  but  that  all  bids 
must  be  for  the  payment  in  lawful  money  of  the 
United  States  of  a  stated  per  cent,  of  the  gross 
annual  receipts  of  the  person,  partnership,  or  cor- 
poration, or  other  authority  to  whom  the  fran- 
chise is  awarded,  arising  from  its  use,  operation. 


816  APPENDIX. 

or  possession.  No  percentage  shall  be  paid  for 
the  first  five  years  succeeding  the  date  of  the  fran- 
chise, but  thereafter  such  percentage  shall  be  pay- 
able annually,  and  shall  in  no  case  be  less  than 
three  per  cent  per  annum  upon  such  gross  re- 
ceipts, the  franchise  to  be  forfeited  by  failure  to 
make  the  payments  stated  in  the  bids  upon  which 
the  award  was  made;  provided,  the  board  of  su- 
pervisors, board  of  trustees,  common  council,  or 
other  governing  or  legislative  body  may  provide 
as  a  condition  of  such  franchise  that  the  payments 
of  said  percentage  shall  begin  at  any  time  less 
than  five  years  after  the  franchise  is  granted,  if 
such  franchise  is  a  renewal,  or  substantially  a  re- 
newal, of  a  franchise  already  in  existence.  After 
the  expiration  of  the  time  stated  in  the  advertise- 
ment up  to  which  sealed  bids  or  proposals  will  be 
received,  the  board  or  other  governing  or  legisla- 
tive body  herein  mentioned,  must  meet  in  open 
session  and  open  and  read  the  tenders  or  bids. 
The  franchise  or  privileges  must  then  be  awarded 
to  the  highest  bidder;  provided,  however,  that 
nothing  in  this  section  shall  affect  a  special  priv- 
ilege, granted  for  a  shorter  term  than  two  years; 
and  provided  further,  that  the  governing  power 
may  reject  any  or  all  bids.  And  provided  further, 
that  unless  the  bidder  shall  file  with  his  bid  a 
bond  to  such  county,  city  and  county,  city,  town, 
or  district,  with  at  least  two  good  and  suflicient 
sureties,  to  be  approved  by  such  board  or  other 
governing  or  legislative  body  in  a  penal  amount 
to  be  by  it  prescribed  and  set  forth  in  the  adver- 
tisement for  bids,  conditioned  that  such  bidder 
shall  well  and  truly  observe,  fulfill,  and  perform 
each  and  all  of  the  terms,  conditions,  and  obli- 
gations of  such  franchise,  in  case  the  same  shall 
be  awarded  to  him,  and  that  in  case  of  any  breach 
or  condition  of  such  bond,  the  whole  amount  of  the 
]>enal  sum  therein  named  shall  betaken  and  deemed 


APPENDIX.  817 

to  be  liquidated  damages,  and  shall  be  recoverable 
from  the  principal  and  sureties  upon  said  bond,  no 
award  of  any  such  franchise  shall  l)e  made  upon 
such  bid,  although  the  same  may  be  the  highest, 
but  such  franchise  may  be  awarded  to  the  next 
highest  bidder,  who  shall  have  complied  with  this 
proviso,  or,  in  the  discretion  of  such  board,  or 
other  governing  or  legislative  body,  all  bids  may 
be  set  aside  and  rejected,  and  new  bids  adver- 
tised for. 

Sec.  2.  No  franchise  now  existing,  or  which 
may  hereafter  be  granted,  shall  be  renewed  by 
the  board  of  supervisors,  board  of  trustees,  com- 
mon council,  or  other  governing  or  legislative  body 
above  described,  nor  shall  the  extension  or  re- 
newal of  the  same  be  advertised  or  offered  for 
sale  by  such  governing  or  legislative  body  until 
within  one  year  prior  to  the  date  of  the  exi)ira- 
tion  of  the  existing  franchise,  unless  the  existing 
franchise  is  first  surrendered  by  the  holders  there- 
of; provided,  no  franchise  can  be  surrendered 
without  the  consent  of  tlie  board  of  supervisors, 
board  of  trustees,  common  council,  or  otlier  gov- 
erning or  legislative  body  of  the  city  and  county, 
city,  or  town,  granting  such  franchise.  And  pro- 
vided further,  that  on  the  application  of  the 
mayor,  or  a  majority  of  the  board  of  supervisors, 
board  of  trustees,  common  council,  or  otlier  gov- 
erning or  legislative  body  above  described,  it  sliall 
be  the  duty  of  the  attorney  general  to  sue  for  a 
forfeiture  of  any  franchise  granted  by  such  gov- 
erning or  legislative  body,  alleging  in  such  suit 
noncompliance  with  the  terms  of  the  franchise. 

Sec.  3.  Any  member  of  any  board  of  super- 
visors, common  council,  or  other  governing  or  leg- 
islative body  of  any  city  and  county,  city,  or  town, 
of  this  State,  who,  by  his  vote,  violates  or  at- 
tempts to  violate  the  provisions  of  this  act.  or  any 
of  them,  shall  be  guilty  of  a  misdemeanor  and  of 
Civ.    Code— 69 


818  APPENDIX. 

malfeasance  in  office,  and  be  deprived  of  his  office 
by  the  decree  of  a  court  of  competent  jurisdiction, 
after  trial  and  conviction. 

Sec.  4.    All  acts  and  parts  of    acts  in    conflict 
with  this  act  are  hereby  repealed. 


An  Act  to  confirm,  ratify,  and  make  valid  or- 
dinances heretofore  passed  by  the  trustees, 
council,  or  other  body  intrusted  with  the  gov- 
ernment of  any  incorporated  city,  city  and 
county,  or  town,  giving  authority  and  permis- 
sion to  propel  cars  upon  railroad  traclvs  laid 
through  the  streets  and  public  highways  of 
such  incorporated  city,  city  and  county,  or 
town,  by  electricity. 

[Approved  February  25,  1891;  Stats.  1891,  p.  12.] 

Section  1.  In  all  cases  where,  prior  to  the  pass- 
age of  this  act,  authority  to  lay  railroad  traclis 
through  streets  or  public  highways  of  any  incor- 
porated city,  city  and  county,  or  town,  has  been 
obtained  for  a  term  of  years,  not  exceeding  fifty, 
from  the  trustees,  council,  or  other  body  to  whom 
was  intrusted  the  government  of  the  city,  city 
and  county,  or  town,  and  permission  has  been 
granted  by  such  governing  body  to  propel  cars 
upon  such  traclvs  by  electricity,  such  authority 
and  permission  shall  be,  and  shall  be  held  and 
deemed,  as  valid  and  legal  as  the  same  would 
have  been  if,  at  the  time  of  the  obtaining  thereof, 
section  four  hundred  and  ninety-seven  of  the  Civil 
Code  had  expressly  declared  that  permission 
might  be  given  to  propel  cars  upon  such  tracks 
by  electricity,  as  well  as  by  horses,  mules,  or  wire 
ropes  running  under  the  streets  and  propelled  by 
stationary  steam  engines;  provided,  that  all  such 


i 


APPENDIX.  819 

permissions  or  franchises  heretofore  granted  shall 
be  subject  to  the  provisions  of  the  laws  of  this 
State  applicable  to  street  railroads  in  general,  and 
subject  to  the  same  regulations  from  city,  city 
and  county,  and  town  authorities  as  if  the  said 
franchises  were  hereafter  granted. 

Sec.  2.    This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage. 


An  Act  to  enable  railroad  companies  to  complete 
their  railroads. 

[Approved  April  1,  1878;  1877-8,  944.] 

Authorizing  construction  of  railroads. 

Section  1.  Every  railroad  company  heret«»iore 
organized  under  the  laws  of  this  State,  and  which 
has  completed  a  portion  of  its  road  prior  to  the 
passage  of  this  act,  is  hereby  authorized  and  om- 
povrered  to  complete  its  road  as  described  in  its 
articles  of  incorporation,  notwithstanding  it  may 
not  have  begun  the  construction  of  its  road  within 
two  years  after  filing  its  original  articles  of  in- 
corporation, and  notwithstanding  it  may  not  have 
completed  and  put  in  operation  five  miles  of  its 
road  each  year  thereafter. 

Sec.  2.  This  act  shall  take  effect  from  and  nftcr 
its  passage. 


820  APPENDIX. 

An  Act  permitting  and  autliorizing  railway  and 
other  corporations,  organized  under  tlie  laws  of 
this  State,  or  of  any  State  or  territory  of  the 
United  States  of  America,  or  any  act  of  Con- 
gress of  the  United  States  of  America,  to  do 
business  in  this  State  on  equal  terms. 

[Approved  April  3,  1880;  1880,  21  (Ban.  ed.  114).] 

Equal  terms  for  all  railway  corporations. 

Section  1.  That  every  railway  corporation,  and 
every  corporation  organized  for  the  purpose  of 
carrying  freights  or  passengers,  which  lias  or  may 
be  created  or  organized  under  or  by  virtue  of  any 
of  the  laws  of  any  State  or  territory  of  the  United 
States  of  America,  or  any  act  of  Congress  of  the 
United  States  of  America,  may  hereafter  build 
railways,  exercise  the  right  of  eminent  domain, 
and  do  or  transact  any  other  business  which  such 
corporation  might,  if  the  same  had  been  created 
or  organized  under  or  by  virtue  of  the  laws  of  this 
State,  having  the  same  rights,  privileges,  and  im- 
munities, and  subject  to  the  same  laws,  penalties, 
and  obligations,  and  burdens,  as  though  said  cor- 
porations had  been  created  by  or  organized  under 
the  laws  of  the  State  of  California, 
Railroad  corporations  may  contract  with  one  an- 
other. 

Sec.  2.  Railroad  corporations  doing  business  in 
this  State  and  organized  under  any  law  of  this 
State,  or  the  United  States,  or  of  any  State  or 
territory  thereof,  have  power  to  enter  into  con- 
tracts with  one  another,  whereby  the  one  may 
lease  of  the  other  the  whole  or  any  part  of  its 
railroad,  or  may  acquire  of  the  other  the  right  to 
use,  in  common  with  it,  the  whole  or  any  part  of 
its  railroad. 

Sec.  3.  All  laws  inconsistent  with  this  act  are^ 
hereby  repealed. 


APPENDIX.  821 


An  Act  to  provide  for  the  management  and  opera- 
tion of  railroads  above  certain  elevations. 

[Approved  February  9,  1897.] 

The  People  of  the  State  of  California,  represented 
in  Senate  and  Assembly,  do  enact  as  follows: 

Section  1.  All  railroads  operated  in  this  State 
whose  lines  of  road  are  wholly  constructed  at  an 
elevation  of  five  thousand  feet,  or  more,  above  the 
level  of  the  sea,  shall  only  be  required  to  maintain 
and  operate  their  roads,  or  to  run  passenger  or 
freight  cars  thereon,  between  the  fifteenth  day  of 
May,  and  the  fifteenth  day  of  October  in  each 
year. 


An  Act  to  compel  railroad  corporations,  or  indi- 
viduals owning  railroads,  to  operate  their 
roads. 

[Approved  April  15,  1880;  1880,  43  (Ban.  ed.  2u5».J 

Operation  of  railroads,  or  forfeiture. 

Section  1.  From  and  after  the  completion  of 
any  railroad,  or  the  completion  of  sucli  portion 
thereof  capable  of  being  operated,  it  shall  be  the 
duty  of  the  corporation,  or  individual  owning  the 
same,  to  operate  it;  and  upon  the  failure  of  said 
corporation  or  individual  so  owning  said  road  to 
keep  tlie  same,  or  any  part  thereof,  in  full  t>pera- 
tion  for  the  period  of  six  months,  its  or  his  right  to 
operate  the  same  in  whole  or  in  part,  as  the  case 
may  be,  shall  be  forfeited:  and  the  lands  occupietl 
for  the  purposes  of  its  or  his  road,  so  far  as  the 
same  shall  not  be  operated,  shall  revert  to  the 
original  owners,  or  their  successors  in  interest.    A 


822  APPENDIX. 

railroad  shall  be  deemed  to  be  in  full  operation 
when  one  passenger  train,  or  one  mixed  train,  is 
run  over  it  once  each  day  in  each  direction,  and  a 
sutficient  number  cf  freight  trains  to  accommodate 
the  traffic  on  said  road. 
Prevention  of  operation. 

Sec.  2.  This  act  shall  not  be  construed  to  apply- 
to  a  case  where  the  operation  of  the  road  is  pre- 
vented by  the  act  of  God,  nor  to  a  case  where  the 
operation  of  said  road,  together  with  its  branch  or 
trunk  lines,  does  not  yield  income  sufficient  to  de- 
fray the  expenses  of  maintaining  and  operating 
the  same  in  connection  with  its  said  branch  or 
trunk  lines. 
Duty  of  railroad  commissioners. 

Sec.  3.  The  railroad  commissioners  of  the  State 
of  California  shall  have  the  power  to  examine  and 
determine  the  question  whether  said  road,  to- 
gether with  its  said  branch  and  trunk  lines,  does 
or  does  not  yield  income  sufficient  to  operate  the 
same. 

Sec.  4.    This  act  shall  take  effect  immediately. 


An  Act  to  create  the  office  of  commissioner  of 
transportation,  and  to  define  its  powers  and 
duties;  to  fix  the  maximum  charges  for  trans- 
porting passengers  and  freights  on  certain  rail- 
roads; and  to  prevent  extortion  and  unjust  dis- 
crimination thereon. 

[Approved  April  1,  1878;  1877-8,  969.] 

This  act,  which  repealed  the  previous  act  of  sim- 
ilar character  of  April  3,  1876,  Stats.  1875-6,  783, 
was  superseded  by  the  operation  of  the  constitu- 
tion adopted  in  May,  1879.     The  following  act  of 


APPENDIX.  823 

1880  was  intended  to  put  the  provisions  of  the 
constitution  in  reference  to  the  subject  into  opera- 
tion. 


An  Act  to  organize  and  define  the  powers  of  the 
board  of  railroad  commissioners. 

[Approved  April  15,  1880;  1880,  45  (Ban.  ed.  207).] 

§     1.  Board   of   railroad   commissioners. 

§    2.  Salaries — Expenses. 

§    3.  Free  passes. 

§    4.  Duty  of  attorney  general  and  district  attorney. 

§    5.  Location  of  office — Sessions  of  board. 

^     H.  Seal. 

§    7.  Powers  of  board. 

§    S.  Powers  of  officers 

§    9.  When  may  sue. 

§  10.  Complaints. 

§  11.  Rates. 

§  12.  Jurisdiction. 

IJ  13.  Demands   from  companies. 

^  14.  Definition. 

J  15.  Salaries,  how  paid. 

"'Board  of  railroad  commissioners." 

Section  1.  The  three  persons  elected  railroad 
commissioners,  pursuant  to  the  provisions  of  sec- 
tion twenty-two  of  article  twelve  of  the  constitu- 
tion of  this  State,  constitute,  and  shall  bo  kn«)wn 
and  desiiinated  as.  the  "Board  of  Kailroad  Tom- 
missioners  of  the  State  of  California."  They  shall 
have  power  to  elect  one  of  their  number  president 
of  said  board,  to  appoint  a  secretary,  to  appoint  a 
bailiff,  who  shall  perform  the  duties  of  janitor: 
also,  to  employ  a  steno.m-apher.  whenever  they 
may  deem  it  expedient. 

Salaries— Expenses. 

Sec.  2.  The  salary  of  each  commissioner  shall 
be  four  thousand  dollars  per  annum:  the  salary  of 
the  secretary  shall  be  twenty-four  hundred  dollars 
per  annum;  the  salary  of  the  bailiff  shall  be  twelve 


824  APPENDIX. 

hundred  dollars  per  annum,  such  salaries  to  be 
paid  by  the  State  of  California  in  the  same  man- 
ner as  the  salaries  of  State  officers  are  paid.  The 
stenographer  shall  receive  a  reasonable  compensa- 
tion for  his  services,  the  amount  to  be  fixed  by  the 
State  Board  of  Examiners,  and  paid  by  the  State. 
Said  commissioners,  and  the  persons  in  their  ofli- 
cial  employment  when  traveling  in  the  perform- 
ance of  their  official  duties,  shall  have  their  travel- 
ing expenses  other  than  transportation  paid,  the 
amounts  to  be  passed  on  by  the  State  Board  of  Ex- 
aminers, and  paid  by  the  State.  Said  Board  of 
Railroad  Commissioners  shall  be  allowed  one  hun- 
dred dollars  per  month  for  office  rent,  and  fifty 
dollars  per  month  for  fuel,  lights,  postage,  express- 
age,  subscription  to  publications  upon  the  subject 
of  transportation,  and  other  incidental  expenses, 
to  be  paid  by  the  State;  provided,  that  all  moneys 
remaining  unexpended  at  the  expiration  of  each 
fiscal  year  shall  be  returned  to  the  State  treasury. 
Said  board  is  further  authorized  to  expend  not  to 
exceed  four  hundred  dollars  for  office  furniture 
and  fixtures,  to  be  paid  by  the  State.  The  State 
shall  furnish  said  board  with  all  necessary  station- 
ery and  printing,  upon  requisitions  signed  by  the 
president  of  said  board. 

Free  passes. 

Sec.  3.  Said  commissioners,  and  the  persons  in 
their  official  employment,  shall,  when  in  the  per- 
formance of  their  official  duties,  have  the  right  to 
pass  free  of  -charge  on  all  railroads,  steamers, 
ships,  vessels,  and  boats,  and  on  all  vehicles  em- 
ployed in  or  by  any  railroad  or  other  transporta- 
tion company  engaged  in  the  transportation  of 
freight  and  passengers  within  this  State. 

Duties  of  Attorney  General  and  District  Attorney. 
Sec.  4.    It  shall  be  the  duty  of  the  Attorney  Gen- 
eral, and  the  District  Attorney  in  every  county,  on 


APPENDIX.  825 

request  of  said  board,  to  institute  and  prosecute. 
ciiid  to  appear  and  to  defend  for  said  board,  in  any 
and  all  suits  and  proceedings  wbicti  tbey  or  either 
(if  them  shall  be  requested  by  said  board  to  insti- 
tute and  prosecute,  and  to  appear  in  all  suits  and 
proceedings  to  which  the  board  is  a  party,  shall 
have  precedence  over  all  other  business  except 
criminal  business;  provided,  that  said  board  shall 
have  the  power  to  employ  additional  counsel  to  as- 
sist said  Attorney  General,  or  said  District  Attor- 
ney, or  otherwise,  when  in  their  judgment  the  exi- 
gencies of  the  case  may  so  require.  The  fees  and 
expenses  of  said  additional  counsel  to  be  deter- 
mined by  the  State  Board  of  Examiners,  and  paid 
by  the  State. 

Location  of  office— Sessions  of  board. 

Sec.  5.  The  office  of  said  board  shall  be  in  the 
city  of  San  Francisco.  Said  office  shall  always  be 
open  (legal  holidays  and  nonjudicial  daj's  ex- 
cepted). The  board  shall  hold  its  sessions  at  least 
once  a  month  in  said  city  of  San  Francisco,  and  at 
such  other  times  and  such  other  places  within  this 
State  as  may  be  expedient.  The  sessions  of  said 
board  shall  be  public,  and  when  held  at  a  place 
other  than  the  office  in  the  city  of  San  Francisco, 
notice  thereof  shall  be  published  once  a  week  for 
two  successive  weelis  before  the  commencement  of 
such  session,  in  a  newspaper  published  in  the 
county,  where  such  session  is  to  be  held;  and  if 
no  newspaper  is  published  in  such  county, 
then  in  a  newspaper  i)ublished  in  an  ad- 
jacent county.  Such  publication  to  be  paid  by  the 
State  in  the  manner  as  other  publications  author- 
ized by  law  are  paid. 
Seal. 

Sec.  6.  The  board  shall  have  a  seal,  to  be  de- 
vised by  its  members,  or  a  majority  thereof.  Such 
seal  shall  have  the  following  inscription  surround- 


826  APPENDIX. 

ing  it:  "Railroad  Commission,  State  of  Califor- 
nia." The  seal  shall  be  affixed  only  to,  first,  writs; 
second,  authentications  of  a  copy  of  a  record  or 
other  proceeding,  or  copy  of  a  document  on  file 
in  the  office  of  said  commission. 
Powers  of  board. 

Sec.  7.  The  process  issued  by  said  board  shall 
extend  to  all  parts  of  the  State.  The  board  shall 
have  power  to  issue  writs  of  summons  and  of  sub- 
poena in  lilie  manner  as  courts  of  record.  The 
summons  shall  direct  the  defendant  to  appear  and 
answer  within  fifteen  days  from  the  day  of  ser- 
vice. The  ru^cessary  piocess  issued  by  the  board 
may  be  served  in  any  county  in  this  State  by  the 
bailiff  of  the  board,  or  by  any  person  authorized 
to  serve  process  of  courts  of  record. 

Powers  of  officers. 

Sec.  8.  The  secretary  of  said  board  shall  issue 
all  process  and  notices  required  to  be  issued,  and 
do  and  perform  such  other  duties  as  the  board 
may  prescribe.  The  bailiff  shall  preserve  order 
during  the  sessions  of  said  board,  and  shall  have 
authority  to  malve  arrests  for  disturbances.  He 
shall  also  have  authority,  and  it  shall  be  his  duty, 
to  serve  all  process,  orders,  and  notices  issued  by 
said  board,  when  directed  by  the  president,  and 
malve  return  of  the  same. 
Complaints  and  decisions  to  be  in  writing. 

Sec.  9.  All  complaints  before  said  board  shall 
be  in  writing  and  under  oath.  All  decisions  of 
said  board  shall  be  given  in  writing,  and  the 
grounds  of  the  decisions  shall  be  stated.  A  record 
of  the  proceedings  of  said  board  shall  be  kept,  and 
the  evidence  of  persons  appearing  before  said 
board  shall  be  preserved. 
When  may  sue. 

Sec.  10.  Whenever  the  board  shall  render  any 
decision  within  the  purview  and  pursuant  to  the 


APPENDIX.  82^ 

authority  vested  iu  said  board  by  section  twenty- 
two  of  article  twelve  of  the  constitution,  said 
board,  or  the  person,  copartnership,  company,  or 
corporation  maliing-  the  complaint  upon  which 
such  decision  was  rendered,  is  authorized  to  sue 
upon  such  decision  in  any  court  of  competent  jur- 
isdiction in  this  State. 

Kates. 

Sec.  11.  Whenever  said  board,  in  the  discharge 
of  its  duties,  shall  establish  or  adopt  rates  of 
charges  for  the  transportation  of  passengers  and 
freight,  pursuant  to  the  provisions  of  the  consti- 
tution, said  board  shall  serve  a  printed  schedule  of 
such  rates,  and  of  any  changes  that  may  be  made 
in  such  rates,  upon  the  person,  copartnership,  com- 
pany, or  corporation  affected  thereby;  and  upon 
such  service,  it  shall  be  the  duty  of  such  person, 
copartnership,  company,  or  corporation  to  imme- 
diately cause  copies  of  the  same  to  be  posted  in  all 
its  oflices,  stationhouses,  warehouses,  and  landing 
offices  affected  by  such  rates,  or  change  of  rates, 
in  such  manner  as  to  be  accessible  to  public  in- 
spection during  usual  business  hours.  Said  board 
I  shall  also  make  such  further  publication  thereof 
as  they  shall  deem  proper  and  necessary  for  the 
public  good.     If  the  party  to  be  served,  as  herein- 

1  before  provided,  be  a  corporation,  such  service 
may  be  made  upon  the  president,  vice-president, 
secretary,  or  managing  agent  thereof,  and  if  a  co- 
partnership, upon  any  partner  thereof.  The  rates 
of  charges  established  or  adopted  by  said  board, 
pursuant  to  the  constitution  and  this  act.  shall  go 
into  force  and  effect  on  the  twentieth  day  after 
service  of  said  schedule  of  rates,  or  changes  in 
rates,  upon  the  person,  copartnership,  company,  or 
corporation  affected  thereby,  as  hereinbefore  pro- 
vided. 


828  APPENDIX. 

Jurisdiction. 

Sec.  12.  When  jurisdiction  is,  by  the  constitu- 
tion, conferred  on  tlie  Board  of  Railroad  Commis- 
sioners, all  the  means  necessary  to  carry  it  into 
effect  are  also  conferred  on  said  board,  and  when 
in  the  exercise  of  jurisdiction  within  the  purview 
of  the  authority  conferred  on  said  board  by  the 
constitution  the  course  of  proceeding  be  not  spe- 
cifically pointed  out,  any  suitable  process  or  mode 
of  proceeding  may  be  adopted  by  the  board  which 
may  appear  most  conformable  to  the  spirit  of  the 
constitution. 

Demand  from  transportation  commissioner,  under 
act  of  April  1,  1878. 

Sec.  13.  The  said  board  shall,  immediately  after 
entering  upon  the  performance  of  its  duties,  de- 
mand and  receive  from  the  transportation  commis- 
sioner, appointed  under  an  act  approved  April 
first,  eighteen  hundred  and  seventy-eight,  section 
nine,  chapter  one,  all  public  property  belonging  to 
the  office  of  said  transportation  commissioner,  in 
his  possession,  or  under  his  control,  and  it  is  here- 
by made  his  duty  to  deliver  the  same  to  the  said 
board. 
Definition  of  term  "transportation  companies." 

Sec.  14.  The  term  "transportation  companies" 
shall  be  deemed  to  mean  and  include: 

1.  All  companies  owning  and  operating  rail- 
roads (other  than  street  railroads)  within  this 
State; 

2.  All  companies  owning  and  operating  steam- 
ships engaged  in  the  transportation  of  freight  or 
passengers  from  and  to  ports  within  this  State; 

3.  All  companies  owming  and  operating  steam- 
boats used  in  transporting  freight  or  passengers 
upon  the  rivers  or  inland  waters  of  this  State. 

The  word  "company,"  as  used  in  this  act,  shall 
be  deemed  to  mean  and  include  corporations,  asso- 


APPENDIX.  829 

ciations,  partnerships,  trustees,  agents,  assignees, 
and  individuals.  Whenever  any  railroad  company 
owns  and  operates  in  connection  with  its  road,  and 
for  the  purpose  of  transporting  its  cars,  freight,  or 
passengers,  any  steamer  or  other  water-craft,  such 
steamer  or  other  water-craft  shall  be  deemed  part 
of  its  said  road.  Whenever  any  steamship  or 
steamboat  company  owns  and  operates  any  barge, 
canalboat,  steamer,  tug,  ferryboat,  or  lighter,  in 
connection  with  its  ships  or  boats,  the  thing  so 
owned  and  operated  shall  be  deemed  to  be  part 
of  its  main  line. 
Salaries,  how  paid. 

Sec.  15.  The  salaries  of  the  commissioners,  sec- 
retary, bailiff,  and  all  other  officers  and  attaches 
in  any  manner  employed  by  the  Board  of  Commis- 
sioners, and  all  expenses  of  every  kind  created 
under  this  act,  shall  be  paid  out  of  any  money  in 
the  general  fund  not  otherwise  appropriated,  and 
the  Controller  of  State  is  hereby  authorized  and 
directed  to  draw  his  warrants  from  time  to  time 
for  such  purposes,  and  the  State  Treasurer  is  here- 
by authorized  and  directed  to  pay  the  same. 

Sec.  16.    This  act  shall  take  effect  immediatelv. 


An  Act  to  limit  and  fix  the  rates  of  fares  on  street 
railroads  in  cities  and  towns  of  more  than  one 
hundred  thousand  inhabitants. 

[Approved  January  1,  1878;  1877-8,  18.] 

Kates  of  fare  of  street  railroads. 

Section  1.  No  street  railroad  in  any  city  or  town 
of  this  State  with  more  tlian  one  hundred  thou- 
sand inhabitants  shall  be  allowed  to  charge  or  col- 
lect a  higher  rate  of  fare  than  five  cents  for  each 
passenger  per  trip  of  any  distance  in  one  direction. 
Civ.   Code— 70 


830  APPENDIX. 

either   goiug   or   coming,    along-   any   part   of  tlie 
Avliole  length  of  the  road  or  its  connections. 

violation  and  forfeiture. 

Sec.  2.  Every  violation  of  the  provisions  of  sec- 
tion one  of  this  act  shall  subject  the  owner  or  own- 
ers of  the  street  railroad  violating  the  same  to  a 
forfeiture  to  the  person  so  unlawfully  charged,  or 
paying  more  than  is  therein  allowed  to  be  charged, 
the  sum  of  two  hundred  and  fifty  dollars  for  each 
and  every  instance  when  such  unlawful  charge  is 
made  or  collected,  to  be  recovered  by  suit  in  any 
court  of  competent  .iurisdiction;  such  causes  of 
action  shall  be  assignable,  and  the  action  may  be 
maintained  by  the  assignee  in  his  own  name,  and 
several  causes  of  action  arising  out  of  unlawful 
charges  or  collections  from  different  persons  may 
lye  vested  in  the  assignee  and  united  in  the  same 
action. 

Sec.  3.  This  act  shall  be  in  force  from  its  pas- 
sage. 


An  Act  relating  to  the  operation  of  railroads. 

[Approved  :March  23,  1893;  Stats.  1893,  208.] 

Section  1.  Every  railroad  company  now  or  here- 
after engaged  in  the  business  of  operating  a  rail- 
road or  railroads,  by  steam  motive  power,  in  the 
State  of  California,  is  hereby  authorized  and  em- 
powered to  use  electricity  or  steam,  or  both  elec- 
tricity and  steam,  for  the  purpose  of  propelling  j 
cars  or  trains  on  such  railroad  or  railroads,  or  up- 
on any  portion  thereof;  provided,  that  in  incorpo- 
rated cities  and  towns  having  more  than  five 
thousand  inhabitants,  authority  must  first  be  ob- 
tained from  the  legislative  authority  of  such  city 
or  town  in  the  same  manner  in  which  franchises 
are  granted. 


APPENDIX.  83] 

Sec.  2.    All  acts  and  parts  of  acts  iu  conflict  witl: 
this  act  are  hereby  repealed. 
Sec.  3.    This  act  shall  take  effect  immediately. 


An  Act  to  limit  the  time  within  which  franchises 
or  privileges  for  the  construction,  extension,  or 
operation  of  street  railroads  may  bf^  granted 
by  boards  of  supervisors  of  the  several  coun- 
ties, and  cities  and  counties  of  this  State. 

[Approved  February  24,  1893;  Stats.  1893,  29.] 

Section  1.  It  shall  be  unlawful  for  the  board  of 
supervisors  of  any  county  or  city  and  county, 
within  the  ninety  days  next  preceding  the  date  of 
holding  a  general  election,  and  within  the  sev- 
enty days  next  immediately  following,  including 
the  day  of  holding  such  general  election,  to  au- 
thorize or  pass  any  ordinance,  order,  or  resolution 
granting  to  any  person  or  persons,  or  association 
of  persons,  or  corporation  whatsoever,  any  privi- 
lege or  franchise  for  the  construction,  extension, 
or  operation  of  any  street  railroad,  or  extension  of 
time  for  the  construction  or  operation  of  any  sti'eet 
railroad,  over  or  upon  any  or  part  of  any  street, 
road,  highway,  squares,  or  park  within  the  county 
or  city  and  county. 

Sec,  2,  Any  franchise  or  privilege  granted,  or 
attempted  to  be  granted,  in  violation  of,  or  con- 
trary to.  the  provisions  of  this  act  shall  be  al3So- 
lutely  void  and  of  no  effect. 

Sec.  3.  All  acts  or  parts  of  acts  in  conflict  with 
this  act  are  hereby  repealed. 

Sec,  4.  This  act  shall  take  eff'ect  and  be  in  force 
from  and  after  its  passage. 


APPENDIX. 


All  Act  requiring-  city,  city  and  county,  or  town 
authorities  to  exact  and  require  from  persons 
or  corporations  seeliing  permission  and  author- 
ity to  lay  raih'oad  tracks  through  streets  or 
public  highways  of  any  incorporated  city,  city 
and  county,  or  town,  a  satisfactory  promise 
and  undertaking  to  permit  and  allow  mail  car- 
riers in  the  employ  of  the  United  States  gov- 
ernment at  all  times,  while  engaged  in  the  ac- 
tual discharge  of  duty,  to  ride  on  the  cars  of 
such  railroad  without  paying  fare;  and  to  make 
such  promise  and  undertaking  a  condition  pre- 
cedent to  the  granting  of  such  permission  and 
authority  hy  such  governing  board. 

[Approved  February  27,  1893;  Stats.  1893,  44.] 

Section  1.  In  all  cases  hereafter,  where  applica- 
tion is  made  to  the  city,  city  and  county,  or  town 
authorities,  or  to  the  trustees,  council,  or  other 
body  to  whom  is  intrusted  the  government  of  the 
city,  city  and  county,  or  town,  for  permission  and 
authority  to  lay  railroad  tracks  through  streets  or 
public  highways  of  any  incorporated  city,  city  and 
county,  or  town,  such  authorities,  before  granting 
such  permission  and  authority,  in  addition  to  the 
terms  and  restrictions  which  they  are  now,  by 
law,  authorized  to  impose,  must  exact  and  require 
from  the  persons  or  corporation  asking  or  seeking 
such  permission  and  authority,  a  satisfactory 
promise  and  undertaking  to  permit  and  allow  mail 
carriers  in  the  employ  of  the  United  States  gov- 
ernment, at  all  times  while  engaged  in  the  actual 
discharge  of  duty,  to  ride  on  the  cars  of  such  rail- 
road without  paying  any  sum  of  money  whatever 
for  fare  or  otherwise;  and  such  governing  body  of 
city,   city  and  county,  or  town  authorities  must 


APPENDIX.  833 

make  such  promise  and  undertaking  on  the  part  of 
such  persons  or  corporations  a  condition  precedent 
to  the  granting  of  such  permission  and  authority 
to  lay  raih-oad  tracks  through  streets  or  public 
highways  of  such  city,  city  and  county,  or  town: 
provided,  that  all  such  permissions  and  franchises 
shall  be  subject  to  all  other  provisions  of  the  laws 
of  this  State  applicable  to  street  railroads  in  gen- 
eral, and  subject  to  regulations  from  city,  city  and 
county,  and  town  authorities. 

Sec.  2.    This  act  shall  take  effect  and  be  in  full 
force  from  and  after  its  passage. 


TAXATION. 

An  Act  imposing  a  tax  on  the  issue  of  certificates 
of  stock  corporations.  (Repealed:  See  note  at 
end  of  statute.) 

[Approved  April  1,  1878;  1877-8,  955.] 

§  1.  Fee  allowed. 

§  2.  Duty  01  secretary. 

§  3.  Examination    of   secretary   and    books. 

§  4.  Perjury. 

§  5.  Disposal  of  moneys  collected. 

Fee  allowed. 

Section  1.  It  shall  be  lawful  for  the  secretary 
of  every  corporation  in  the  State  of  California  to 
demand  and  receive  of  any  person  requiring  tne 
issue  to  him  of  any  certificate  of  stock  in  such 
corporation,  a  fee  of  ten  cents  in  coin  for  each  cer- 
tificate, whether  such  certificate  be  the  original  is- 
sue or  an  issue  on  transfer,  and  such  certificate 
shall  not  be  delivered  by  the  secretary  until  such 
fee  shall  be  paid. 
Duty  of  secretary. 

Sec.  2.    It  shall  be  the  duty  of  the  secretary  of 
every   such  corporation,   on  the  first   Monday  in 


834  APPENDIX. 

Janu.iry,  April.  July,  and  October,  of  each  year, 
to  make  returns,  under  oath,  to  the  tax  collector, 
or  officer  citing  as  tax  collector,  of  the  number  of 
certificates  issued  by  the  corporation  of  Avhich  he 
is  secretary,  during  the  quarter  preceding,  and  pay 
to  such  tax  collector  the  sum  of  ten  cents  in  coin 
for  each  and  every  certificate  so  issued  by  said 
corporation,  except  that  in  the  city  and  county  of 
San  Francisco  such  returns  and  payments  shall  be 
made  to  the  license  collector,  or  officer  engaged  in 
the  collection  of  licenses  in  said  city  and  county. 

Examination  of  secretary  and  books. 

Sec.  3.  Such  tax  collector,  or  license  collector,  is 
hereby  authorized  and  empowered  to  examine  such 
secretary,  under  oath,  as  to  the  truth  of  said  re- 
turns, and  to  examine,  if  necessary,  the  books  of 
such  corporation,  so  far  as  they  relate  to  the  trans- 
fer of  stock,  or  issue  of  certificates,  and  if  the 
returns  are  not  correct,  then  he  is  authorized  to 
commence  an  action  against  such  corporation  in 
any  court  of  competent  jurisdiction  in  the  name 
of  the  people  of  the  State  of  California,  for  a  pen- 
alty of  one  hundred  dollars  for  each  certificate  is- 
sued by  such  corporation  and  not  so  returned  un- 
der oath,  and  several  penalties  may  be  joined  in 
such  action. 

Perjury. 

Sec.  4.  Any  persons  violating  the  provisions  of 
section  two  of  this  act  shall  be  deemed  guilty  of 
a  misdemeanor,  and  false  swearing  to  any  return 
provided  in  section  two  shall  be  deemed  perjury. 

Disposal  of  moneys  collected. 

Sec.  5.  All  moneys  collected  under  the  provi- 
sions of  this  act  shall  be  paid  by  such  tax  collector, 
or  license  collector,  into  the  county  treasury,  and 
shall  become  a  part  of  the  general  fund,  or  if  there 
shall  in  any  county  be  no  general  fund,  then  the 


APPENDIX.  835 

same  shall  become  a  part  of  such  fimd  as  the 
board  of  supervisors  may  direct. 

Sec.  G.  This  act  shall  take  effect  on  the  first 
Monday  in  April,  1878. 

This  act  was  repealed  by  act  approved  March 
31,  1897;  Stats.,  c.  18U. 


TELEGRAPH  COMPANIES. 

Act  granting  franchise  for  telegraph  company 
between  .Isia  and  America,  see  Stats.  1871-2,  97. 


TRADEMARKS. 


An  Act  to  protect  the  owners  of  bottles,  boxes, 
siphons,  and  kegs  used  in  the  sale  of  soda  wa- 
ters, mineral  or  aerated  waters,  porter,  ale. 
cider,  ginger  ale,  milk,  cream,  small  beer,  lager 
beer,  weiss  beer,  beer,  white  beer,  or  other  bev- 
erages. 

[Approved  March  31.  1891;  Stats.  1891,  217.] 

§  1.  Description  to  be  filed  with  county  clerk. 

§  2.  Unlawful   acts. 

§  3.  Use  presumptively  unlawful. 

§  4.  Issue    of   search-warrants— Punishment. 

§  5.  Refiling  of  marks  not  required. 

Section  1.  Any  and  all  persons  engaged  in  man- 
ufacturing, bottling,  or  selling  soda  waters,  min- 
eral or  aerated  waters,  porter,  ale.  beer,  cider,  gin- 
ger ale,  milk,  cream,  small  beer,  lager  beer,  weiss 
beer,  white  beer,  or  other  beverages  in  bottles, 
siphons,  or  kegs,  with  his,  her,  its.  or  their  name 
or  names,  or  other  marks  or  devices  branded, 
stamped,  engraved,  etched,  and  blown,  impressed, 
or  otherwise  produced  upon  such  bottles,  siphons, 
or  kegs,  or  the  boxes  used  by  him,  her,  it,  or  them. 


836  APPENDIX. 

may  file  in  the  office  of  the  Clerk  of  the  county  in 
which  his,  her,  its,  or  their  principal  place  of  busi- 
ness is  situated,  and  also  in  the  office  of  the  Secre- 
tary of  State,  a  description  of  the  name  or  names, 
marks  or  devices,  so  used  by  him,  her,  it,  or  them, 
respectively,  and  cause  such  description  to  be 
printed  once  in  each  week  for  three  weeks  suc- 
cessively, in  a  newspaper  published  in  the  county 
in  which  said  notice  may  have  been  filed  as  afore- 
said. 

Sec.  2.  It  is  hereby  declared  to  be  unlawful  for 
any  person  or  persons,  corporation  or  corporations,. 
to  fill  with  soda  waters,  mineral  or  aerated  waters, 
porter,  ale,  cider,  ginger  ale,  milk,  cream,  beer, 
small  beer,  lager  beer,  weiss  beer,  white  beer,  or 
other  beverages,  or  with  medicine,  compounds,  or 
mixtures,  any  bottle,  box,  siphon,  or  keg,  so 
marked  or  distinguished,  as  aforesaid,  with  or  by 
any  name,  mark,  or  device,  of  which  a  description 
shall  have  been  filed  and  published,  as  provided  in 
section  one  of  this  act,  or  deface,  erase,  obliterate, 
cover  up,  or  otherwise  remove  or  conceal  any  such 
name,  mark  or  device  thereon,  or  to  sell,  buy,  give^ 
take,  or  otherwise  dispose  of  or  traffic  in  the  same, 
without  the  written  consent  of,  or  unless  the  same 
shall  have  been  purchased  from  the  person  or  per- 
sons, corporation  or  corporations,  whose  marli  or 
device  shall  be  or  shall  have  been  in  or  upon  the 
bottle,  box,  siphon,  or  keg  so  filled,  trafficked  in, 
used,  or  handled  as  aforesaid.  Any  person  or  per- 
sons or  corporation  offending  against  the  provi- 
sions of  this  section  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  punished  for  the  first 
offense  by  imprisonment  not  less  than  ten  days  nor 
more  than  six  months,  or  by  a  fine  of  fifty  cents 
for  each  and  every  such  bottle,  box,  siphon,  or  keg 
so  filled,  sold,  used,  disposed  of,  bought,  or  traf- 
ficked in,  or  by  both  such  fine  and  imprisonment; 
and  for  each  subsequent  offense  by  imprisonment 


APPENDIX.  837 

not  less  thau  twenty  days  nor  more  than  one  year, 
or  by  a  fine  of  not  less  than  one  dollar  nor  more 
than  five  dollars,  for  each  and  every  bottle,  box, 
siphon,  and  keg  so  filled,  sold,  used,  disposed  of, 
bought  or  trafficked  in,  or  by  both  such  fine  and 
imprisonment,  in  the  discretion  of  the  magistrate 
before  whom  the  oft'ense  shall  be  tried. 

Sec.  3.  The  use  by  any  person  other  than  the 
person  or  persons,  corporation  or  corporations, 
whose  device,  name  or  mark  shall  be  or  shall  have 
been  upon  the  same,  without  such  written  consent 
or  purchase,  as  aforesaid,  of  any  such  mark  or 
distinguished  bottle,  box,  siphon,  or  keg,  a  de- 
scription of  the  name,  mark,  or  device  whereon 
shall  have  been  filed  and  published,  as  herein  pro- 
vided, for  the  sale  therein  of  soda  waters,  mineral 
or  aerated  waters,  porter,  ale,  cider,  ginger  ale, 
milk,  cream,  beer,  small  beer,  lager  beer,  weiss 
beer,  white  beer,  or  other  beverages,  or  any  article 
of  merchandise,  medicines,  compounds,  or  prepara- 
tions, or  for  the  furnishing  of  such  or  similar  bev- 
erages to  customers,  or  the  buying,  selling,  using, 
disposing  of,  or  traflicking  in  of  any  such  bottles, 
boxes,  siphons,  or  kegs,  by  any  person  other  than 
said  persons  or  corporations  having  a  name,  mark, 
or  device  thereon,  or  such  owner  without  such 
written  consent,  or  the  having  by  any  junk  dealer, 
or  dealer  in  second-hand  articles,  possession  of  any 
such  bottles,  boxes,  siphons,  or  kegs,  a  description 
of  the  marks,  names,  or  devices  wherein  shall  have 
been  so  filed  and  published  as  aforesaid,  without 
such  written  consent,  shall  and  is  hereby  declared 
to  be  presumptive  evidence  of  the  said  unlawful 
use,  purchase,  or  traflic  in  of  such  bottles,  boxes, 
siphons,  or  kegs. 

Sec.  4.  AYhenever  any  person,  persons,  or  corpo- 
rations, mentioned  in  section  one  of  this  act,  or  his 
her,  its,  or  their  agent,  shall  make  oath  before  any 
magistrate  that  he,  she,  or  it  has  reason  to  believe, 


838  APPENDIX. 

and  does  believe,  tbat  any  of  his,  her,  or  their  bot- 
tles, boxes,  siphons  or  Ivegs,  a  description  of  the 
names,  marlvs,  or  devices  whereon  has  been  so  filed 
and  published,  as  aforesaid,  are  being  unlawfully 
used  or  filled,  or  had  by  any  person  or  corporation 
manufacturing  or  selling  soda,  mineral,  or  aerated 
waters,  porter,  ale,  eider,  ginger  ale,  millv,  cream, 
small  beer,  lager  beer,  weiss  beer,  white  beer,  and 
other  beverages,  or  that  anj^  junk  dealer,  or  dealer 
in  second-hand  articles,  vender  of  bottles,  or  any 
other  person  or  corporation,  has  any  such  bottles, 
boxes,  siphons,  or  kegs,  in  his,  her,  or  its  posses- 
sion, or  secreted  in  any  place,  the  said  magistrate 
must  thereupon  issue  a  search  warrant  to  discover 
and  obtain  the  same,  and  may  also  cause  to  be 
brought  before  him  the  person  in  Avhose  possession 
such  bottles,  boxes,  siphons,  or  kegs  may  be  found, 
and  then  inquire  into  the  circumstances  of  such 
possession;  and  if  said  magistrate  finds  that  such 
person  has  been  guilty  of  a  violation  of  section 
two  of  this  act,  he  must  impose  the  punishment 
therein  prescribed,  and  he  shall  also  award  pos- 
session of  the  property  taken  upon  such  search- 
warrant  to  the  owner  thereof. 

Sec.  5.  Any  person  or  persons,  corporation  or 
corporations,  that  has  or  have  heretofore  filed  in 
the  oftices  mentioned  in  section  one  of  this  act  a 
description  of  the  name  or  names,  marks  or  de- 
vices, upon  his,  her,  their,  or  its  property  therein 
mentioned,  and  has  caused  the  same  to  be  pub- 
lished according  to  the  laws  existing  at  the  time 
of  such  filing  and  publication,  sliall  not  be  re- 
quired to  again  file  and  publish  such  description 
to  be  entitled  to  the  benefits  of  this  act. 

Sec.  6,  All  acts  and  parts  of  acts  inconsistent 
herewith  are,  for  the  purposes  of  this  act,  hereby 
repealed. 


APPENDIX. 

UXIXCORPOKATED  SOCIETIES. 
See  ante,  Co-operative  Associations. 


WAKEHOUSES  AND  WHARFINGERS. 

An  Act  in  relation  to  waretiouse  and  wharfinger 
receipts,  and  other  matters  pertaining  thereto. 

[Approved  April  1,  1878;  1877-8,  949.] 

§  I.  Issuance  of  receipts  for  goods. 

§  2.  Issuing  of  receipt  upon  goods  as  security. 

§  3.  Second  receipts,  issuance  of. 

§  4.  Removal  of  goods  when  receipt  issued. 

§  5.  Receipts  classed. 

§  6.  Receipts  to  be  indorsed. 

§  7.  No  delivery  except  on  order. 

§  8.  Non-negotiable  receipts,  how  marked. 

§  9.  Loss  by  fire. 

§  10.  Felony. 

Issuance  of  receipt  for  goods. 

Section  1.  That  no  warehouseman,  wharfinger, 
or  other  person  doing  a  storage  business,  shall  is- 
sue any  receipt  or  voucher  for  any  goods,  wares, 
merchandise,  grain,  or  other  produce  or  commod- 
ity, to  any  person  or  persons  purporting  to  be  the 
owner  or  owners  thereof,  unless  such  goods,  wares, 
merchandise,  grain,  or  other  produce  or  commod- 
ity, shall  have  been  bona  fide  received  into  store 
by  such  warehouseman,  wharfinger,  or  other  per- 
son, and  shall  be  in  store  and  under  his  control 
at  the  time  of  issuing  such  receipt. 
Issuing  of  receipt  upon  goods  as  security  for 
money  loaned. 

Sec.  2.  That  no  warehouseman,  wharfinger,  or 
other  person  engaged  in  the  storage  business  shall 
issue  any  receipt  or  other  voucher  upon  any  goods, 


840  APPENDIX. 

wares,  merchandise,  grain,  or  other  produce  or 
commodity,  to  any  person  or  persons,  as  security 
for  any  money  loaned,  or  other  indebtedness,  un- 
less such  goods,  wares,  merchandise,  grain,  or 
other  produce  or  commodity,  shall  be,  at  the  time 
of  issuing  such  receipt,  the  property  of  such  ware- 
houseman, wharfinger,  or  other  person,  shall  be 
in  store  and  under  control  at  the  time  of  issuing 
such  receipt  or  voucher  as  aforesaid. 
Second  receipts  not  to  be  issued,  except,  etc. 

Sec.  3.  That  no  warehouseman,  wharfinger,  or 
other  person  as  aforesaid,  shall  issue  any  second 
receipt  for  any  goods,  wares,  merchandise,  grain, 
or  other  produce  or  commodity,  while  any  former 
receipt  for  any  such  goods  or  chattels  as  aforesaid,, 
or  any  part  thereof,  shall  be  outstanding  and  un- 
canceled. 
Removal  of  goods  when  receipt  is  issued. 

Sec.  4.  That  no  warehouseman,  wharfinger,  or 
other  person  as  aforesaid,  shall  sell  or  incumber, 
ship,  transfer,  or  in  any  manner  remove  beyond 
his  immediate  control,  any  goods,  wares,  merchan- 
dise, grain,  or  other  produce  or  commodity  for 
which  a  receipt  shall  have  been  given  as  aforesaid, 
without  the  written  assent  of  the  person  or  per- 
sons holding  such  receipt  or  receipts  plainly  in- 
dorsed thereon  in  inlv. 

Receipts  classed. 

Sec.  5.  Warehouse  receipts  for  property  stored 
shall  be  of  two  classes:  1.  Transferable  or  nego- 
tiable; and,  2.  Nontransferable  or  non-negotiable. 
Under  the  first  of  these  classes,  all  property  shall 
be  transferable  by  the  indorsement  of  the  party  to 
whose  order  such  receipt  may  be  issued,  and  such 
indorsement  of  the  party  shall  be  deemed  a  valid 
transfer  of  the  property  represented  by  such  re- 
ceipt, and  may  be  in  blank  or  to  the  or- 
der   of    another.      All     warehouse    receipts     for 


ArPEXDIX.  841- 

property  stored  shall  distiuctly  state  on  their 
fact  for  what  they  are  issued,  as  also  the 
brands  and  distinsriiishing  marlis;  and  in  the 
case  of  grain,  the  number  of  sacks,  and 
number  of  pounds,  and  kind  of  grain;  also 
the  rate  of  storage  per  month  or  season 
charged  for  storing  the  same. 

Receipt  to  be  indorsed. 

Sec.  6.  No  Tvarehouseman,  or  other  person  or 
persons,  giving  or  issuing  negotiable  receipts  for 
goods,  grain,  or  other  property  on  storage,  shall  de- 
liver said  property,  or  any  part  thereof,  without  in- 
dorsing upon  the  back  of  said  receipt  or  receipts, 
in  ink.  the  amount  and  date  of  the  deliveries.  Nor 
shall  he  or  they  be  allowed  to  make  any  offset, 
claim,  or  demand  other  than  is  expressed  on  the 
face  of  the  receipt  or  receipts  issued  for  the  same, 
when  called  upon  to  deliver  said  goods,  merchan- 
dise, grain,  or  other  property. 

No  delivery  except  on  order. 

Sec.  7.  No  warehouseman,  or  person  or  persons 
doing  a  general  storage  business,  giving  or  issu- 
ing non-negotiable  or  nontransferable  receipts  for 
goods,  grain,  or  other  property  on  storage,  shall 
deliver  said  property,  or  any  part  thereof,  except 
upon  the  written  order  of  the  person  or  persons 
to  whom  the  receipt  or  receipts  were  issued. 

Non-negotiable  receipts,  how  marked. 

Sec.  8.  All  receipts  issued  by  any  warehouse- 
man or  other  person  under  this  act,  other  than 
negotiable,  shall  have  printed  across  their  face, 
in  bold,  distinct  letters,  in  red  ink,  the  words  "non- 
negotiable." 
Loss  by  fire. 

Sec.  9.  No  warehouseman,  person  or  persons  do- 
ing a  general  storage  business,  shall  be  responsible 
for  any  loss  or  damage  to  property  by  fire  while  in 
his  or  their  custody,  provided  reasonable  care  and 

Civ.    Code-71 


842  APPENDIX. 

vigilance  be  exercised  to  protect  and  preserve  the 
same. 

Felony. 

Sec.  10.  Any  warehouseman,  wharfinger,  person 
or  persons,  who  shall  violate  any  •f  the  foregoing 
provisions  of  this  act,  is  guilty  of  felony,  shall  be 
subject  to  indictment,  and  upon  conviction,  shall 
be  fined  in  a  sum  not  exceeding  five  thousand  dol- 
lars ($5,000),  or  imprisonment  in  the  State  prison 
of  this  State  not  exceeding  five  years,  or  both. 
And  all  and  every  person  aggrieved  by  the  viola- 
tion of  any  of  the  provisions  of  this  act  may  have 
and  maintain  an  action  against  the  person  or  per- 
sons violating  any  of  the  foregoing  provisions  of 
this  act,  to  recover  all  damages,  immediate  or  con- 
sequent, which  he  or  they  may  have  sustained  by 
reason  of  any  such  violation  as  aforesaid,  before 
any  court  of  competent  jurisdiction,  whether  such 
person  shall  have  been  convicted  under  the  act  or 
not. 


APPENDIX.  843 


WATER   COMPANIES. 

Irrigation:    See  General  Laws,  title  Irrigation. 

An  Act  to  regulate  and  control  the  sale,  rental,  and 
distribution  of  appr.jpiiated  water  in  this  State, 
other  than  in  any  city,  city  and  county,  or 
town  therein,  and  to  secure  the  rights  of  way 
for  the  conveyance  of  such  water  to  the  places 
of  use. 

[Approved  :March  12,  1885;  1885,  95.] 

§    1.  Use  of  appropriated  public  water. 

§    2.  Supervisors  may  fix  rates. 

§    3.  Petition   for   fixing   rates. 

15    4.  Hearing  of  petition— Value  of  waterworks. 

§    5.  Rules  to   be   observed   in  fixing  rates. 

§    6.  Changing  rates. 

§    7.  Record  of  rates   to  be  published. 

§    8.  Water   to   be   furnished   at   rates   fixed. 

§    9.  Penalty   for   excessive   charges. 

§  10.  To  sell  to  all  persons. 

§  11.  Condemning  land  for  right  of  way. 

§  11%.  Contracts  in  eistence  how  affected. 

Use  of  appropriated  water  public. 

Section  1.  The  use  of  all  water  now  appropri- 
ated, or  that  may  hereafter  be  appropriated,  for 
irrigation,  sale,  rental,  or  distribution,  is  a  public 
use,  and  the  right  to  collect  rates  or  compensation 
for  use  of  such  water  is  a  franchise,  and  except 
when  so  furnished  to  any  city,  city  and  county,  or 
town,  or  the  inhabitants  thereof,  shall  be  regu- 
lated and  controlled  in  the  counties  of  this  State 
by  the  several  boards  of  supervisors  thereof,  in  the 
manner  prescribed  in  this  act. 
Supervisors  may  fix  rates. 

Sec.  2.  The  several  boards  of  supervisors  of  this 
State,  on  petition  and  notice  as  provided  in  sec- 
tion three  of  this  act,  are  hereby  authorized  and 


-844  APPENDIX. 

required  to  fix  and  regulate  the  maximum  rates 
at  which  any  person,  company,  association,  or  cor- 
poration, having  or  to  have  appropriated  water  for 
sale,  rental,  or  distribution  in  each  of  such  coun- 
ties, may  and  shall  sell,  rent,  or  distribute  the 
same. 
Petition  for  fixing  rates. 

Sec.  3.  Whenever  a  petition  of  not  less  than 
twenty-five  inhabitants,  who  are  tax-payers  of  any 
county  of  this  State,  shall,  in  writing,  petition  the 
board  of  supervisors  thereof,  to  be  filed  with  the 
clerk  of  said  board,  to  regulate  and  control  the 
rates  and  compensation  to  be  collected  by  any  per- 
son, company,  association,  or  corporation,  for  the 
sale,  rental,  or  distribution  of  any  appropriated 
water,  to  any  of  the  inhabitants  of  such  county, 
and  shall  in  such  petition  specify  the  persons,  com- 
panies, associations,  or  corporations,  or  any  one  or 
more  of  them,  whose  water  rates  are  therein  peti- 
tioned to  be  regulated  or  controlled,  the  cleric  of 
such  board  shall  immediately  cause  such  petition, 
together  with  a  notice  of  the  time  and  place  of 
hearing  thereof,  to  be  published  in  one  or  more 
newspapers  published  in  such  county;  and  if  no 
newspaper  be  published  therein,  then  shall  cause 
copies  of  such  petition  and  notice  to  be  posted  in 
not  less  than  three  public  places  in  such  counties, 
and  such  publication  and  notice  shall  be  for  not 
less  than  four  weeks  next  before  the  hearing  of 
said  petition  by  said  board;  such  notice  to  be  at- 
tached to  said  petition  shall  specify  a  day  of  the 
next  regular  term  of  the  session  of  the  said  board 
not  less  than  thirty  days  after  the  first  publica- 
tion or  posting  thereof,  for  the  hearing  of  said  pe- 
tition, which  shall  impart  notice  to  all  such  per- 
sons, companies,  associations,  and  corporations 
mentioned  in  such  petition,  and  all  persons  inter- 
ested in  the  matters  of  such  petition  and  notice. 
Such  board  may  also  cause  citations  to  issue  to 


APPENDIX.  845 

any  person  or  persons  Tvithin  such  county  to  at- 
tend and  give  evidence  at  the  hearing  of  such  peti- 
tion, and  may  compel  such  attendance  by  attach- 
ment. 

Hearing  of  petition— Value  of  Avater  ^orl^s. 

Sec.  4.  At  the  hearing  of  said  petition  the  board 
of  supervisors  shall  estimate,  as  near  as  may  be. 
the  value  of  the  canals,  ditches,  flumes,  water- 
chutes,  and  all  other  property  actually  used  and 
useful  to  the  appropriation  and  furnishing  of  such 
water,  belonging  to  and  possessed  by  each  person, 
association,  company,  or  corporation,  whose  fran- 
chise shall  be  so  regulated  and  controlled;  and 
shall  in  like  manner  estimate  as  to  each  of  such 
persons,  companies,  associations,  and  corporations, 
their  annual  reasonable  expenses,  including  the 
cost  of  repairs,  management,  and  operating  such 
worlds;  and,  for  the  purpose  of  such  ascertainment, 
may  require  the  attendance  of  persons  to  give  evi- 
dence, and  the  production  of  papers,  books,  and 
accounts,  and  may  compel  the  attendance  of  such 
persons  and  the  production  of  papers,  books,  and 
accounts,  by  attachments,  if  within  their  respect- 
ive counties. 

Ilules  to  be  observed  in  fixing  rates. 

Sec.  5.  In  the  regulation  and  control  of  such 
water  rates  for  each  of  such  persons,  companies, 
associations,  and  corporations,  such  board  of  su- 
pervisors may  establish  different  rates  at  which 
water  may  and  shall  be  sold,  rented,  or  distributed, 
as  the  case  may  be;  and  may  also  establish  differ- 
ent rates  and  compensation  for  such  water  so  to 
be  furnished  for  the  several  different  uses,  such 
as  mining,  irrigating,  mechanical,  manufacturing, 
and  domestic,  for  which  such  water  shall  be  sup- 
plied to  such  inhabitants,  but  such  rates  as  to  each 
class  shall  be  equal  and  uniform.  Said  boards  of 
supervisors,  in  fixing  such  rates,  shall,  as  near  as. 


846  APPENDIX. 

may  be,  so  adjust  them  that  the  net  annual  re- 
ceipts and  profits  thereof  to  the  said  persons,  com- 
panies, associations,  and  corporations  so  furnish- 
ing such  water  to  such  inhabitants  shall  be  not 
less  than  six  nor  more  than  eighteen  per  cent  upon 
the  said  value  of  the  canals,  ditches,  flumes, 
chutes,  and  all  other  property  actually  used  and 
useful  to  the  appropriation  and  furnishing  of  such 
water  of  each  of  such  persons,  companies,  associa- 
tions, and  corporations;  but  in  estimating  such  net 
receipts  and  profits,  the  cost  of  any  extensions,  en- 
largements, or  other  permanent  improvements  of 
such  water  rights  or  water  worlds  shall  not  be  in- 
cluded as  part  of  the  said  expenses  of  manage- 
ment, repairs,  and  operating  of  such  works,  but 
when  accomplished,  may  and  shall  be  included 
in  the  present  cost  and  cash  value  of  such  worlv. 
In  fixing  said  rates,  within  the  limits  aforesaid,  at 
which  water  shall  be  so  furnished  as  to  each  of 
such  persons,  companies,  associations,  and  corpo- 
rations, each  of  said  board  of  supervisors  may 
liliewise  take  into  estimation  any  and  all  other 
facts,  circumstances,  and  conditions  pertinent 
thereto,  to  the  end  and  purpose  that  said  rates 
shall  be  equal,  reasonable,  and  just,  both  to  such 
persons,  companies,  associations,  and  corporations, 
and  to  said  inhabitants.  The  said  rates,  when  so 
fixed  by  such  board,  shall  be  binding  and  conclu- 
sive for  not  less  than  one  year  next  after  their 
establishment,  and  until  established  anew  or 
abrogated  by  such  board  of  supervisors,  as  herein- 
after provided.  And  until  such  rates  shall  be  so 
established,  or  after  they  sliall  have  been  abro- 
gated by  such  board  of  supervisors  as  in  this  act 
provided,  the  actual  rates  established  and  collected 
by  each  of  the  persons,  companies,  associations, 
and  corporations  now  furnishing,  or  that  shall 
hereafter  furnish,  appropriated  waters  for  sale, 
rental,  or  distribution  to  the  inhabitants  of  any 


I 


APPENDIX.  847 

of  the  counties  of  this  State,  shall  be  deemed  and 
accepted  as  the  legally  established  rates  thereof. 
Changing  rates. 

Sec.  6.  At  any  time  after  the  establishment  of 
.'^uch  water  rates  by  any  board  of  supervisors  of 
this  State,  the  same  may  be  established  anew,  or 
abrogated  in  whole  or  in  part  by  such  board,  to 
talvG  effect  not  less  than  one  year  next  after  such 
first  establishment,  but  subject  to  said  limitation 
of  one  year,  to  take  effect  immediately  in  the  fol- 
lowing manner.  Upon  the  written  petition  of  in- 
habitants as  hereinbefore  provided,  or  upon  the 
written  petition  of  any  of  the  persons,  companies, 
associations  or  corporations,  the  rates  and  compen- 
sations of  whose  appropriated  waters  have  already 
been  fixed  and  regulated,  and  are  still  subject  to 
such  regulation  by  any  board  of  supervisors  of  this 
State,  as  in  this  act  provided;  and  upon  the  lil^e 
publication  or  posting  of  such  petition  and  notice, 
and  for  the  lil^e  period  of  time  as  hereinbefore  pro- 
vided, such  board  of  supervisors  shall  proceed 
anew,  in  the  manner  hereinbefore  provided,  to  fix 
and  establish  the  water  rates  for  such  person,  com- 
pany, association,  or  corporation,  or  any  number 
of  them,  in  the  same  manner  as  if  such  rates  had 
not  been  previously  established,  and  may,  upon 
the  petition  of  such  inhabitants,  but  not  otherwise, 
abrogate  any  and  all  existing  rates  theretofore 
established  by  such  board.  All  water  rates,  when 
fixed  aud  establislied  as  herein  provided  shall  be  in 
force  and  eft'ect  until  established  anew  or  abro- 
gated, as  provided  in  this  act. 

Record  of  rates  to  be  ptiblished. 

Sec.  7.  Each  board  of  supervisors  of  this  State, 
when  fixing  and  establishing,  or  fixing  and  estab- 
lishing anew,  or  abolishing  any  previously  estab- 
lislied water  rates,  as  hereinbefore  provided,  shall 
cause  a  record  to  be  made  thereof  in  the  records 


848  APPENDIX. 

of  such  board,  and  cause  the  same  to  be  published 
or  posted  in  the  manner  and  for  the  time  required 
for  the  publication  or  posting  of  said  petitions 
and  notices. 

Water  to  be  furnished  at  rates  fixed. 

Sec.  8.  Any  and  all  persons,  companies,  associa- 
tions, or  corporations,  furnishing  for  sale,  rental, 
or  distribution,  any  appropriated  waters  to  the  in- 
habitants of  any  county  or  counties  of  this  State 
(other  than  to  the  inhabitants  of  any  city,  city  and 
county,  or  town,  therein),  shall  so  sell,  rent,  or  dis- 
tribute such  waters  at  rates  not  exceeding  the  es- 
tablished rates  fixed  and  regulated  therefor  by  the 
boards  of  supervisors  of  such  counties,  or  as  fixed 
and  established  by  such  person,  company,  associa- 
tion, or  corporation,  as  provided  in  this  act. 
Penalty  for  excessive  charges. 

Sec.  9.  If  any  person,  company,  association,  or 
corporation,  whose  water  rates  for  any  county  of 
this  State  have  been  fixed  and  regulated  by  a 
board  of  supervisors,  as  in  this  act  provided,  and 
while  such  rates  are  in  force,  shall  collect,  for  any 
appropriated  water,  furnished  to  any  inhabitant  of 
such  county  water  rates  in  excess  of  such  estab- 
lished rates,  shall  be  liable,  in  an  action  by  any 
such  inhabitant  so  aggrieved,  to  a  recovery  of  the 
whole  rate  so  collected,  together  with  actual  dam- 
ages sustained  by  such  inhabitant,  with  costs  of 
suit. 

To  sell  to  all  persons. 

Sec.  10.  Every  person,  company,  association^ 
and  corporation,  having  in  any  county  in  the  State 
(other  than  in  any  city,  city  and  county,  or  town 
therein)  appropriated  waters  for  sale,  rental,  or 
distribution,  to  the  inhabitants  of  such  county,  up- 
on demand  therefor,  and  tender  in  money  of  such 
established  water  rates,  shall  be  obliged  to  sell, 
rent,  or  distribute  such  water  to  such  inhabitants 


APPENDIX.  849 

at  the  established  rates  regulated  and  fixed  there- 
for, as  in  this  act  provided,  whether  so  fixed  by 
the  board  of  supervisors  or  otherwise,  to  the  ex- 
tent of  the  actual  supply  of  such  appropriated  wa- 
ters of  such  person,  company,  association,  or  cor- 
poration, for  such  purposes.  If  any  person,  com- 
pany, association,  or  corporation,  having  water  for 
such  use,  shall  refuse  compliance  with  such  de- 
mand, or  shall  neglect,  for  the  period  of  five  days 
after  such  demand,  to  comply  therewith  to  the 
extent  of  his  or  its  reasonable  ability  so  to  do, 
shall  be  liable  in  damages  to  the  extent  of  the  ac- 
tual injury  sustained  by  the  person  or  party  mak- 
ing such  demand  and  tender,  to  be  recovered,  with 
costs. 
Condemning  land  for  right  of  way. 

Sec.  11.  Whenever  any  person,  company,  asso- 
ciation, or  corporation  shall  have  acquired  the 
right  to  appropriate  water,  or  shall  have  acquired 
the  right  to  appropriate  such  water  in  this  State, 
such  person,  company,  association,  or  corporation, 
may  proceed  to  condemn  the  lands  and  premises 
necessary  to  such  right  of  way,  under  the  pro- 
visions of  Title  YII.  of  Part  III.  of  the  Code  of 
Civil  Procedure  of  this  State,  and  amendments 
made  and  to  be  made  thereto,  and  all  the  provi- 
sions of  said  Code,  so  far  as  the  same  can  be  made 
applicable,  relating  to  the  condemnation  and  tak- 
ing of  property  for  public  uses,  shall  be  applicable 
to  the  provisions  of  this  act. 
Contracts  in  existence,  how  affected. 

Sec.  11^^.  Nothing  in  this  act  contained  shall  be 
construed  to  prohibit  or  invalidate  any  contract 
already  made,  or  which  shall  hereafter  be  made, 
by  or  with  any  of  the  persons,  companies,  associa- 
tions, or  corporations  described  in  section  two  of 
this  act,  relating  to  the  sale,  rental,  or  distribu- 
tion of  water,  or  to  the  sale  or  rental  of  easements 
and  servitudes  of  the  right  to  the  flow  and  use  of 


850  APPENDIX. 

water;  nor  to  prohibit  or  intorfere  with  the  vesting 
of  riiihts  tmder  any  such  contract.  [New  section, 
added  March  2,  1897:  Stats.  1897,  c.  54.] 

Sec.  12.    This  act    shall  take    effect    and    be  in 
force  from  and  after  its  passage. 


An  Act  authorizing  the  boards  of  supervisors  oi 
the  counties  in  which  water  is  sold  for  the  pur- 
pose of  irrigation  to  fix  the  rates  at  which 
water  shall  be  sold. 

[Approved  March  26,  1880;  1880,  16  (Ban.  ed.  59).] 

§  1.  Supervisors  to  fix  rates. 

§  2.  Forfeiture   of  franchise. 

§  3.  Action   to  enforce  forfeiture. 

§  4.  To  compel  performance  of  duties  of  supervisors. 

§  5.  Control  of  use  of  water  prohibited. 

Supervisors  to  fix  rates. 

Section  1.  The  boards  of  supervisors  of  the  sev- 
eral counties  of  this  State  in  which  water  is  ap- 
propriated, furnished,  and  sold  principally  for  the 
purposes  of  irrigation,  are  hereby  atithorized  and 
required  to  fix  the  maximum  rates  at  which  such 
water  shall  be  furnished  and  sold,  at  a  meeting  to 
be  held  in  the  month  of  February  of  each  \ear; 
provided,  that  in  the  year  eighteen  hundred  and 
eighty  such  rates  shall  be  fixed  at  The  first  meet- 
ing after  the  passage  of  this  act.  The  rates  so 
fixed  and  established  shall  be  in  to-rce  from  and 
after  the  first  day  of  July,  after  the  date  of  fixing 
said  rates,  and  shall  continue  in  forr^e  for  the 
period  of  one  year;  provided,  that  nothmg  iii  this 
section  shall  apply  to  water  furnished  within  the 
limits  of  any  incorporated  city  and  county,  city, 
or  town. 

Forfeiture  of  franchise. 

Sec.  2.  Any  person,  company,  or  corporation  col- 
lecting rates  for  water  furnished  for  irrigation  m 


APPENDIX.  851 

any  coimty  iu  this  State  iu  excess  oH  the  rates  as 

provided  iu  section  one  of  this  act  shall  forfeit 

for  the  public  use  the  franchise  and  Avater  works 

of  such  person,   company,   or  corporation  to   the 

county     in     which     such     excessive     rates     were 

charged. 

Action  to  enforce  forfeiture. 

Sec.  3.  Upon  affidavit  being  made  by  any  inter- 
ested party,  setting  foith  that  any  such  compan\'. 
person,  or  corporation  has  charged  rates  for  water 
furnished  for  irrigating  purposes  in  excess  of  the 
rates  established  by  the  board  of  supervisors,  the 
said  board  of  supervisors  shall  cause  the  District 
Attorney  to  commence  an  action  in  the  Superior 
Court  of  the  county,  Avithin  thirty  days  from  the 
receipt  by  them  of  such  affidavit,  to  enforce  the 
forfeiture  of  the  franchise  and  water  works  of 
such  person,  company,  or  corporation. 
To  compel  the  performance  of  the  dtities  of  super- 
visors. 

Sec.  4.  If  the  board  of  supervisors  fail  or  neglect 
to  fix  the  rates,  as  provided  in  section  one  of  this 
act,  or  if  the  board  of  supervisors  fail  or  neglect 
to  commence  the  action  provided  for  ir.  section 
three  of  this  act,  as  therein  provided,  any  inter- 
ested person  may  commence  proceedings  to  com- 
pel the  performance  of  such  duties. 
Control  of  use  of  water  prohibited. 

Sec.  5.  No  person,  company,  or  corporation  sell- 
ing water  for  irrigation  shall  be  permitted  to  ex- 
ercise any  control  as  to  the  use  of  the  water  after 
its  delivery  to  the  purchaser. 

Sec.  6.    This  act  shall  take  effect  immediately. 


INDEX. 


ABANDONED  GOODS,  finder  of  thing  not  bound 

to  keep  it  for  owner,  §  1871. 
ABANDONMENT,  of  husband,  relieves  from  duty 
of  support.  §  17.5. 

of  child,  evidence  of  relinquishment  of  control, 
§  197. 

of  homestead,  §§  124.3,  1244. 

of  ship  by  ship-master,  §  2940. 

of  ship,  duties  of  ship-master  on,  §  2941. 

in  marine  insurance.    See  Insurance,  Marine. 
ABATEMENT,  of  legacies,  §  1.362. 

of  nuisances,  claim  for  damages,  §  3484. 

of  public  nuisance,  by  whom,  §  3494. 

of  public  nuisance,  how,  §  349.5. 

of  private  nuisance,  when,  §  3-502. 
ABDUCTION,  forbidden.  §  49. 
ABLE  AND  WILLING.    See  Performance. 
ABSENCE,  effect  on  marriage,  §§  61,  97,  98. 

temporary,  when  desertion.  §  100. 

missing  persons,   act  relating  to    See  vol.   of 
General  Laws,  title,  Missing  Persons. 
ACCEPTANCE,  of  accord,  satisfaction,  §  1523. 

of  benefit  of  transaction,  effect,  §  1.589. 

of  partial  performance,  §  1741. 

of  rent,  renews  lease,  when,  §  1945. 

of  guaranty,  notice  when  necessary,  §  2795. 

of  principal,  waives  interest,  when,"^  §  3290. 

of  abandonment.    See  Insurance. 

of  bill  of  exchange.    See  Bill  of  Exchange. 

of  proposal  to  contract.    See  Contract. 
ACCESSION,  property  may  be  acquired  by,  §  1000. 
To  Real  Propertv. 

by  fixtures,  §  1013. 

by  alluvion,  §  1024. 

ownership  of  deposits,  §  1014. 

by  removal  of  bank,  §  1015. 

by  accumulation  of  earth,  §  1016. 

by  change  of  river's  course,  ><  iui9. 
To  Personal  Property, 

bv  union  of  several  things,  §  1025. 

by  admixture  of  materials,  §  1028. 

by  formation  of  new  things,  §  1029. 

by  workmanship,    §   1030. 

Civ.    Code.— 72 


«54  INDEX. 

ACCESSION— Continued. 
To  Personal  Property. 

by  willful  trespass,   §   1031. 
ACCESSOlvY,    passes    by    transfer    of    principal 
thing,  §§  1084,  3540. 

lien  is,  §  2909. 
ACCIDENT,   error  in  contract  caused  by,   to  be 
disregarded,  §  1640. 

deposit  by,  must  be  accepted,  §  181G. 

thing  gained  by,  held  in  trust,  §  2224. 
See  Mistake. 
ACCORD,  defined,  §  1521. 

effect,  §  1522. 

acceptance  of,  satisfaction,  §  1523. 

of  liquidated  debt,  §  1524. 
ACCOUNT,  employee  must  render,  §  1986. 

of  voluntary  interferer  Mith  property,  §  2078. 

of  trust,  §  2237. 

partners  to.  §  2412. 

partner  to,  for  certain  profits,  §  2438. 
ACCRETION.     See  Accession. 
ACCUMULATIONS,  disposition  of,  §  722. 

void,  when,  §  723. 

certain  allowed,  §  724. 

directions  concerning,  void  Avhen.  §  725. 

surplus  in  trust,  when  liable  to  creditors,  §  859. 

allowances  made  out  of,  §  726. 

income.    See  Income. 
ACKNOWLEDGMENTS,  declaration  of  maiTiage, 
§  77. 

inventory  of  separate  property  of  wife,  §  165. 

marriage-settlement  contracts,  §  178. 

contract    of    apprenticeship    of    alien    minors, 
§275. 

articles  of  incorporation,  §  292. 

execution  of  power  by  married  woman,  §  898. 

consent  to  execution  of  power,  §  907. 

instruments  for  record,  §  1158. 

instruments    evidencing     judgment    title    for 
record,  §  1159. 

letters  patent  recorded  without.  §  1160. 

who  may  take,  in  state,  §§  1180,  1181. 

deputy  may  take,  §  1184. 

requisites,  §  1185. 

foreign,  who  may  take,  in  other  states,  §  1182. 

foreign,  who  may  take,  out  of  United  States, 
§  1183. 

foreign,  certificate  of  clerk  to,  effect  of,  §  1189. 

foreign,    acknoAvledgmeut    taken  without    the 
state,  form  of,  §  il89. 


INDEX.  855 

ACKX()WLP:I  xniEXTS— Coiitiimed. 

married  woman,  acknowledament  bv.  §§  1093, 
1189. 

married  women,  ackuowledament  bv.  bow  ex- 
ecuted. §  1093. 

ofReer  to  indorse  certilioate,   §  1188. 

certificate  of.  bv  corporation.  §  1190. 

form  of  certificate,  §§  1189-1192. 

certificate  of.  by  attorney  in  fact,  §  1192. 

seals  and  sisrnatures.  §  1193. 

certificate  of  officer  on,  S§  1193.  1200. 

certificate  of  county  clerk,  where  taken  by  jus- 
tice of  the  peace,  §  1194. 

subscribing  witness  to  be  personally  known, 
§  1196. 

witness  to  prove  what.   §  1197. 

handwriting-  proved,  when.  §  1198. 

evidence  must  prove  what.  §  1199. 

interpreter  may  be  employed,  §  1201. 

otficers  may  punish  for  contempt,  §  1201. 

action  to  correct  error  in  certifying,    §  1202, 

acts     legalizing     defective     acknowledgments, 
pp.  703  et  seq. 

action  to  obtain,   §   1203. 

instruments  heretofore  made.  §  1205. 

instruments  affecting  homesteads,   §  1242. 

homestead   declaration,   §   1262. 

certificate  of  change  of  name  in  partnership, 
§  2469. 

certificate  of  special  partnership,  §  2480. 

mortgages,  §  2952. 

personal  mortgages.  §  2963. 

assignment  for  benefit  of  creditors.  §  3458. 
ACQUIESCENCE,  removes  objections,  §  3516. 
ACT,  title  of  establishing  the  Civil  Code,  §  1. 

how  cited,  §  21. 
ACTIONS,  particular  action.    See  Particular  Title. 

commenced  previous  to  taking  effect  of  Code, 
not  affected.  §  20. 
ACTS  OF  GOD,  injure  no  one,  §  3526. 

excuses  non-performance.  §  1511. 

innkeeper    not  responsible  for,  §  1859. 

carrier  not  responsil)le  for.  §  2194. 

no  one  responsible  for,   §  3526. 
ADEMPTION.    See  Wills. 

of  legacy,  advancement  or  gift  when  deemed, 
§  1351. 
ADMINISTRATORS.    See  Executors  and  Admin- 
istrators. 


•856  INDEX. 

ADOPTION,  of  child.  §  221. 
who    may  adopt,  §  222. 
consent  of  wife,  when  necessary,   §  223. 
consent  of  child's  parents  necessary,  §  224. 
consent  of  child,  when  necessary,  §  225. 
adoption  of  child  from  asylum  without  consent, 

§  224. 
proceedinj?s,  §  226. 
jnd^-e's  order,  §  227. 
effect,  §  228. 

effect  on  former  relations  of  child,  §  229. 
of  illegitimate  child,  §  20. 
authorizing  orphan  asylums  to  consent  to,  §  224. 
ADULTERY,  divorce  granted  for,  §  92. 
defined,   §  93. 

legitimacy  of  issue  of  marriage  divorced  on  ac- 
count of,  §§  144,  145. 
disposition  of  community  property  on  divorce 
for,  §  147. 
ADULTS,  who  are,  §  27. 

compensation  for  support  of  adult  child,  §  210. 
ADVANCEMENTS,  effect,  §  1309. 
when  deemed  ademption,  §  1351. 
constitutes  part  of  distributive  share,  §  1395. 
when  in  excess  or  insufficient,  effect,  §  1396. 
what  deemed,  §  1397. 
value,  how  determined,  §  1398. 
effect  of,    §   1309. 

effect  when  person  advanced  to  dies  before  tes- 
tator, §  1399. 
ADVANTAGE,  unfair,  when  fraudulent,  §  1575. 
unfair,  when   evidence   of   undue    influence,  § 

1575. 
trustee  not  to  use  influence  to  obtain,  §§  2228, 

2231. 
partner    must    not    obtain    over    copartners, 
§  1411. 
ADVERSE  CLAIM,  depositary    to    give  notice  to 
depositor  of,  §  1825. 
trustee  to  give  notice  to  beneficiary  of  his  ac- 
quisition of,  §  2233. 
ADVERSE  POSSESSION,  owner  of  property  in, 
may  transfer  his  right,  §  1297, 
property  in,  may  be  mortgaged,  §  2041. 
AFFIDAVITS,  of  officers  on  filing  articles  of  in- 
corporation, §  295. 
of  publication  of  notice  of  sale  of  delinquent 
stock,  §  348. 


INDEX.  857 

AFFIDAVITS— Continued. 

of  publication  of  notice  of  change  of  partner- 
ship name,  §  2471. 

of  publication  of  notice  of  special  partnership, 
§  2484. 

of  truth  of  inventory  by  assignor  for  benefit  of 
creditors,  §  3462. 
AGE,  of  majority.    See  Majority,  Age  of;  Minors. 
AGENCY.     See  Attorney  in  Fact;   Subagent. 

who  may  appoint,  and  who  may  be  an,  defined, 
§  2295. 

parties  to,  defined,  §  2295. 

agents,  general  or  special,  §  2297.  ; 

agency,  actual  or  ostensible,  §  2298. 

actual,  §  2299. 

ostensible,  §  2300. 

what  authority  may  be  conferred,  §  2304. 

agent  may  perform  acts  required  of  principal 
by  Code,  §  2305. 

agent  cannot  have  authority  to  defraud  prin- 
cipal, §  2306. 

creation  of,  §  2307. 

consideration  unnecessary,  §  2308. 

form  of  authority,  §  2309. 

agent  to  conform  to  his  authority,   §  2019, 

must  Iveep  his  principal  informed,  §  2020. 

collecting  agent,   §  2021. 

responsibility  of  subagent,  §  2022. 

measure  of  agent's  authority,  §  2315. 

actual  authority,  what,  §  2316. 

ostensible  authority,  what.   §  2317. 

agent's  authority  as  to  persons  having  notice 
of  restrictions  upon  it,  §  2318. 

agent's  necessary  authority,  §  2319. 

declarations  of,  when  admissible,  §  2319. 

declarations  as  to  terms  of  authority,  §  2319. 

agent's  power  to  disobey  instructions,  §  2320, 

authority  construed  by  specific  rather  than  gen- 
eral terms,  §  2321. 

exceptions  to  general  authority,  §  2322. 

what    included    in    authority   to    sell   personal 
property,  §  2323. 

what  included  in  authority  to    sell    real    prop- 
erty,  §2324. 

authority  of  general  agent  to  receive  price  of 
property,  §  2325. 

authority    of   special    agent   to    receive   price, 
§  2326. 


858  INDEX. 

AGENX^Y— Coiitinned. 

principal,  liow  affected  by  acts  of  agent  within 
scope  of  autliority,  §  2830. 

principal,  when  bound  by  incomplete  execution 
of  autliority.  §  2881. 

notice  to  agent,  when  notice  to  principal,  § 
2832. 

obligation  of  principal  when  agent  exceeds  au- 
thority. §  2883. 

for  acts  done  under  merely  ostensible  author- 
ity, §  2334. 

when  exclusive  credit  is  given  to  agent,  §  2335. 

rights  of  person  who  deals  with  agent  without 
knowledge  of  agency.  §  283G. 

Instrument  intended  to  bind  principal,  §  2387. 

principal's  responsil)ility  for  agent's  negligence 
or  omission.  §  2388. 

principal's  responsibility  for  wrongs  willfully 
committed  by  agent,  §  2389. 

warranty  of  authority,   §  2842. 

damages  for  breach  of  Avarrantv  of  authority 
of,  §  8318. 

indemnity  extends  to  acts  of.   §  2775. 

notice  of  dishonor,  how  given  under,  §  3149. 

ratification  of  agent's  act.  §  2810. 

ratification  of  part  of  transaction,  §  2811. 

Avhen  ratification  void,  §2312. 

rescission  of  ratification,   S  2814. 

agent's  responsibility  to  third  persons,  §  2343. 

obligation  of  agent  to  surrender  property  to 
third  person,  §  2844. 

agent  not  having  capacity  to  contract,  §  2345. 

agent's  delegation  of  powers,  §  2849. 

agent's  unauthorized  employment  of  subagent, 
§  2850. 

subagent  rightfully  appointed,  represents  prin- 
cipal, §  2851. 

termination  of,  §  2355. 

termination  where  agent  has  no  interest, 
§  2850. 

of  auctioneer,  §  2302. 

of  factor,   §  2807. 

of  ship-master,  §  2878. 

of  ship's  manager,  §  2888. 

ship's  manauer  cannot  borrow  money  without 
special  authority,  §  2889. 

of  general  partner,  §  2429. 

of  partner  in  mines,  autliority,  §  2519. 

agent's  acts  for  insurer  on  abandonment, 
§  2720. 


INDEX.  869 

AGREEMENT.    See  Contract. 
AGRICULTURAL    FAIR    CORPORATION.    See 

Corporations. 
AGRICULTURAL  LAND,  limitation  on  leases  of, 

§  717. 
ALIENATION,  restraints   on,  when    void,  §§  711, 

716. 
how  long*  poAver  of,  may  be  suspended,  §  715. 
disposition    of    income    during    suspension    of 

power  of.  §  733. 
of  intermediate  interest  does  not  defeat  future 

interest,  §  742. 
suspension  of  power  of.    §  770. 
suspension  of  ])ower  of,  by  trust.  §  771. 
ALIENS,    minor,    apprenticeship    of.    §  274. 
may  hold  property.  §  671. 
inheriting-,    when    must    claim    or    be    barred, 

§672. 
resident,  may  talve  by  succession,  §  1404. 
ALIMONY,  when  court  mav  grant,  §§  137-139. 
security  for,  §  140. 
when  may  not  be  granted.  §  142. 
out  of  what  property  granted,  §  141. 
ALLUVION.     See  Accession. 
ALTERATION.    See  Revision. 

how  contract  may  be  altered,  §§  1697,  1698. 
of  interests  disposed  of  bv  will,  when  revoca- 
tion of  will,  §§  1303.  1304. 
of  contract  by  consent,  §  1697. 
of  contract  in  writing.  §  1698. 
contract   extinguished  by,    §  1699. 
unauthorized,   of   contract,    effect.    §  1770. 
of  contract  in  duplicate,  effect,  §  1701. 
of  thing  covered  by  fire  insurance,  increasing 

risk,  effect,  §  2753. 
of  thing    insured,  not    increasing    risk,  effect, 

§  2754. 
of  representation  in  insurance,  §  2576. 
of  obligation  exonerates  guarantor.  §  2821. 
AI>TERNATIVE,  future  interest  may  be  in,  §  696. 

obligation,  right  of  selection  under.  §  1448. 
o])lioation,  right  of  selection  under,  how  lost, 

S  1449. 
o])ligation,  selection  under,  how  made.  §  1450. 
oblisration,  effect  of  nuUitv  of  one  branch  of, 

§  1451. 
negotiable  instrument  mav  be  in,  §  3090. 
AMBIGUITY,  in  wills,  how  construed,  §  1323. 
in  contracts,  how  construed,   §  1349. 


8oO  INDEX. 

AMENDMENTS  TO  CODES,  to  Civil  Code,  effect 

of  those  of  1874,  §  5. 
ANIMALS,     corporations    for    insuring    domestic^ 
§286. 

corporations  for  improving  breed,  §  286. 

domestic,  subject  of  ownership,  §  655. 

wild,  how  far  subject  of  ownership,  §  656. 

depositary  of,  must  use  what  care,  §  1834. 

compensation  of  depositary  of,    §  1853. 

borrower  for  use,    must    use    great    kindness, 
§  1887. 

protection  of  sheep  against  dogs,  §  3341. 

lien  in  favor  of  owner  of  animal  for  propagat- 
ing purposes,  p.  795,  Stat. 

act  to  prevent  combinations  to  obstruct  sale  of 
livestock,  p.  705,  Stat. 
ANNUITY,  defined,  §  1357. 

when  due,  §  1368. 
ANNULMENT,  of    indentures  of    apprenticeship, 
causes  for,  §  276. 

of  marriage.    See  Divorce. 
APPEALS,   from   order  distributing  property  on 

divorce,  §  148. 
APPOINTMENT,     of     guardian     by     the     court, 
§§  243-244. 

of  guardian  by  the   court  supersedes  parent, 
§204. 

no  person  guardian  of  estate  without,  §  242. 

effect  of  power  of,  §  781. 

of  trustee,  how  made,  §  2287. 

of  successor  to  trustee,  duty    of    trustee    con- 
cerning, §  2260. 
APPGIITIONMENT  of  burden  of  servitude  on  par- 
tition of  dominant  tenement,  §  807. 

of  losses  occasioned    by    collision    of    vessels, 
§  973. 

of  covenants,  §  1467. 

of  consideration  in  case  of  prevention  of  per- 
formance, §  1514. 

of  hire,  §  1935. 

of  freightage,  by  contract,   §§  2140,  2141. 

of  freightage,  according  to  distance,  §  2142. 

of  lien.  §  2912. 
APPRAISERS,  petition  for  appointment  of,  to  ap- 
praise homestead,  §  1245. 

petition  to  contain  what,  §  1246. 

appointment  of,  to  assess  value  of  homestead, 
§  1249. 

oath,  §  1250. 


INDEX.  861 

APPRAISERS— Continued. 

duties,  §  1251. 

return,    §  1252. 

fees,   §  1258. 
APPRENTICESHIP,  ^vbo  may  enter  into,  §  2&i. 

minors  may  be  apprenticed,  p.  708  et  seq.,  Stat. 

minors,  by  whom  may  be  apprenticed,  p.  708 
et  seq.,   Stat. 

executors  may  bind  to,  §  267. 

supervisors  may  bind  to,  §  268. 

town  officers  may  bind  paupers  to.    §  269. 

whose    consent    necessary  to,  and    bow  given, 
§  265. 

consent  to,  to  be  in  writing,  §  266. 

consent  of  minor  necessary,  p.  709,  §  3,  Stat. 

age  of  apprentice,  p.  712,  §  12,  Stat. 

indentures,  p.  709,  §  4  et  seq.,  Stat. 

wliat  must  be  stated  in  indentures.  §  270. 

conditions  in  indentures,  §§  271,  272. 

deposit  of  indentures,  §  27.3. 

of  alien  minors,  how  affected,   §§  274,  275. 

obligations  of  masters,  p.  711,  §  9  et  seq..  Stat. 

liability  of  master,  p.  711  et  seq.,  Stat. 

money  and  clothes  for  apprentice,  p.  711,  §  10, 
Stat. 

complaint  of  apprentice  against  master,  p.  712, 
§  13,  Stat. 

treatment  of  apprentices,  p.  711,  §  10,  Stat. 

liability  of  apprentice  for    neglect    or    miscon- 
duct, p.  711,  §  11,  p.  713,  §  16,  Stat. 

enticing  apprentice  to  run  away  or  harboring 
him  a  misdemeanor,  p.  714,  §  19,  Stat. 

dissolution  of  apprenticeship  by  court,  p.  713, 
§  17,  Stat. 

discharge  of  apprentice,  p.  712,  §  14,  Stat. 

removal  of  master  from  state,  discharge  of  ap- 
prentice, p.  714,  §  20,  Stat. 

master  quitting  trade  or  business,  discharge  of 
apprentice,  p.  712,  §  14,  Stat. 

costs,  payment  of  on  dissolution  of  apprentice- 
ship, p.  713,  §  17,  Stat. 
APPURTENANCES    pass    by    transfer    of    land, 
§§  476,  1084,  3540. 

defined,  §  662. 

certain,  deemed  fixtures,   §  661. 

to  land,  what,  §  662. 

to  ship,  what,  §  961. 


862  INDEX.  ^ 

APPURTENANCES -Continued. 

iiTiuation  corporation,  stocl?;  in  as  an  appurte- 
nance. §  824. 
ARBITRATION,  partner  cannot  submit  firm  claim 
to.  §  24.30. 

aa'reement  for.  cannot  be  specifically  enforced, 
^§  3390. 
ASSESSMENT.     See  Corporations. 

bv  benefit  societies,  p.  724.  §  3.  Stat. 
ASSIGNMENTS  FOR  THE  BENEFIT  OF  CRED- 
ITORS, who  may  make.  §  3449. 

partner  has  no  authority  to  malve.  §  2430. 

assi.ffnment  must  be  written.  §  34.^)8. 

assijrnment.  what  to  contain,  §  3449. 

books  and  vouchers,  surrender  of.  §  3462. 

must  be  recorded  where.  §§  2463,  2464. 

void  if  not  recorded,  §  2465. 

dutv  to  record  assignment  and  effect  of  fail- 
ure, §  3465. 

assignment  to  be  made  to  sheriff.  §  3449. 

where  assignor  resides  out    of    state,  §§  3449, 
3451. 

assignment  when  void,  §  3465, 

affidavit  to  assignment,    §  3462. 

assignment,   modification    or    cancellation    of. 
§  3473. 

gives  no  rights  greater  than  debtor  had,  §  3460. 

inventory  to  accompany,    §3461. 

void  against  creditor,  when,  §§  3457,  3459. 

inventory,  form  of,   §  34.58. 

inventory  what  to  contain.  §  3449. 

inventory,  failure  to  make,  effect  of,  §§  3462, 
3465,  3468. 

inventory,  acknowledgment  of.  §  34.58. 

inventory  accompanving,  must  be  filed  where, 
§  3463. 

of  real  property,  subject  to  certain  provisions, 
§  3466. 

property  exempt  from  execution  does  not  pass 
by,  §  3470. 

life  insurances  do  not  pass  by,  §  3470. 

meetings  of  creditors,  §  3449. 

meeting  of  creditors,  notice  of,  §  3449. 

meeting  of  creditors,  adjournment  of.  §  3449. 

meeting  of  creditors,  secured  claim,  holder  of, 
not  to  vote  at  election  of  assignee.  §  3449. 

meeting  of  creditors,  voting  in  person  or  by 
proxy,  §  .3449. 

sheriff,    assignment    by    to    elected    assignee, 
§  3449. 


INDEX.  863 

ASSIGNMENTS,   etc.— Coiitiuiied. 
sheriff,  duties  of,  ^  8449. 
sheriff,  fees  of.  §  3449. 
assiuiiee.   election  of.   §  8449. 
assi.snee,  duties  of,  §  3449. 
assignee,  powers  and  duties  of.  §  3468. 
assignees,  commissions  of.  §  3471. 
assignee,  rights  of    where    property  to    secure 

debt  exceeds  debt,  §  34(38. 
assignee,  when  to  make  inventoi-y,  §  3462. 
assignee  under,   may  be  required  to  account, 

§  3469. 
assignee  not    liable    for    acts    in    good    faith, 

thougli   void.    §  3472. 
assignor,  citation  and  examination  of,  §  3462. 
bond,  duty  of  assignee  to  file,   §  3467. 
bond,  failure    of    assignee    to    file,   effect    of, 

§  3467,  3468. 
bond,  sheriff"  liable  on  official  bond,  §  3467. 
bond,  sheriff  not  required  to  give,  §  3467. 
notice  to  creditors,  mailing  of.  §  3468. 
notice  to  creditors,  publication  of,  §  3468. 
notice  to  creditors,  filing  copy  with  recorder. 

§  3468. 
claims,  what  debts  may  be  secured  by,  §  3452. 
claims,  statement  of,  §  3449. 
secured   creditor,  rights   where    security  given 

up,  §  3468. 
secured    creditor,   rights    where    security    not 

given  up,  §  3468. 
preference  to  creditor,  §  3451. 
assignment  to  particular  creditor.  §  3451. 
dividends,   payment   of.    §  3468. 
ASSIGNMENTS   OF  CONTRACTS,   of  mortgage, 

effect  of  recording.  §  2935. 
of  debt  secured  bv  mortgage  carries  the  secur- 
ity with  it,  §  2936. 
general,  by  maker  of  negotiable  instrument  to 

indorser.'  excuses  notice  of  dishonor,  §  3157. 
by  lessor,  liability  of  assignee,  §  822. 
non-negotiable  contract    in  writing    may  pass 

by.  §  1459. 
of  partnership  property,  partner  cannot  make, 

§  2430. 
of  mortgage  mav  be  recorded.  §  2984. 
ASSOCIATIONS.    See  Corporations, 
co-operative.    See  post,  p.  742,  Stat, 
protective.    See  post,  p.  737,  Stat. 
ASSURANCE,  executory  contract  for  sale,  binds 

seller  to  insert  covenant  of  further,  §  1733. 


S64 


INDEX. 


ASYLUM,  who    may    be    placed    in    lunatic,    and 
how,    §258. 
orphans  in  orphan,  may  be  apprenticed  how, 

§  265. 
corporations  may  be  formed  for  maintenance 
of,  §  286. 
ATTORNEY-GENERAL  may  inquire  into  affairs 
of  corporations,  §  382. 
duty  of,  when  alien  heir  does  not  claim  inherit- 
ance, §  1405. 
duty  where  business  of  building  society  dan- 
gerously   conducted,    pp.730,    731,   §§9,   10, 
Stat, 
duty  to  prosecute  and  defend  suits  for  railroad 
commissioners,  p.  824,  §  4,  Stat. 
ATTORNEY  IN  FACT.     See  Agency. 

how  must  execute  certain  instruments,  §  1095. 
form    of    certificate    of    acknowledgment    by, 

§  1191. 
power  of,  how  revolted,  §  1216. 
ATTORNEYS,   advertising  to  procure  divorce  or 
annul  marriage  is  a  misdemeanor.  See  Penal 
Code,  §  159yo. 
ATTORNMENT,  by  tenant   to   landlord,  unneces- 
sary, §  1111. 
by  tenant  to  stranger,  void,  §  1948. 
AUCTION,  sale  of  delinquent  stock  by,  §  341. 
sale  by,  defined.  §  1792. 
sale  by,  when  complete.  §  1793. 
withdrawal  of  bid  at  sale  by,  §  1794. 
written  conditions  of  sale  by,  not  to  be  modi- 
fied, §  1795. 
rights  of  bidder  at,  §  1796. 
by-bidding  prohibited,  §  1797. 
memorandum  of  sale,  by  whom  made,  §  1798. 
sale  of  pledged  property  to  be  by,  §  3005. 
pledgee  may  purchase  pledges  sold,  §  3010. 
AUCTIONEER,  authority  of,  from  seller,  §  2362. 

authority  of,  from  bidder,   §  2363. 
AUTHOR,  of  product  of  the  mind,  exclusive  own- 
er thereof,  §  980. 
rights  of  subsequent.  §  984. 
AUTHORITY,  construction  of  words  giving  joint, 
§  12. 
abuse  of,  renders  contract  voidable,  §  1566. 
of  agent.    See  Agency, 
of  auctioneer.     See  Auctioneer, 
of  executor.    See  Executors, 
of  factors.     See  Factors. 


iXDEX.  865 

AUTHOHITY— Continued. 

of  parent.    See  Parent. 

of  ship-master.     See  Sliippinsi:. 

of  ship's  mauagf'i-.     See  Shipping. 

of  trustee.     See  Trusts. 
AVERAGE,  general,  defined,  §  2148. 

general,  how  adjusted,  §  2152. 

general,  value,  how  ascertained  for  purpose  of, 
§  21.>3. 

general,  owner  of  goods  stowed  on  deck,  when 
entitled  to  benefit  of,  §  2154. 

ship-master  has  power  to  adjust  §  2388. 

insurance  free  from,  effect  of,  §  2711. 

general,    marine    insurer    liable    for,    §§    2712, 
2744. 
AVULSION,    owner    may   reclaim     land    carried 

away  by,   §  1015. 
AWARD.    See  Arbitration. 
BAGGAGE.     See  Luggage. 
BAIL  defined,  §  2780. 

how  regulated,  §  2781. 
BAILMENT.    See  Deposit;     Depositary:     Hiring; 

Loan:  Pledsre. 
BANKS  AND  BANKING,  banking,  book  and  no- 
tice of  directors  and  stockholders.   §  321. 

change  of  principal  place  of  business  of  cor- 
poration, §  321. 

business  corporation  not  to  carry  on,  §  356. 

special  partnership  cannot  carry  on,  §  2477. 

lien  of  banker,  §  3054. 

pass-book  not  negotiable.  §  32G2. 

capital  stock,  act  prohibiting  dividing,  with- 
drawing or  reducing,  p.  719,   §   IS,   Stat. 

capital  stock,  increasing  or  reducing,  p.  719, 
§§  19,  20,  Stat. 

act  authorizing  next  of  kin  of  deceased  to  col- 
lect deposit  under  three  hundred.  See  Code 
of  Civil  Procedure,  Appendix,  p.  814,  Stat. 

act  relating  to  banking  corporations,  repeal  of, 
p.  715,  Stat. 

savings  banks,  publishing  statement  of  un- 
claimed deposits,  p.  716,  Stat. 

act  compelling  all  depositaries  of  money  to 
ptiblish  statement  of  unclaimed  deposits,  p. 
717,    Stat. 

act    compelling     commercial     banks    to    pub- 
lish statement  of  unclaimed  deposits,  pp.  716, 
717,  Stat. 
BANK  NOTE,  negotiable  after  payment,   §  326L 
Civ.   Code.— 7a. 


866  INDEX. 

See  Check;  Negotiable  Instrument, 
BASTARD.     See  Legitimacy. 

BENEFICIARY  in  real  property  has  no  interest 
therein,  when,  §  863. 
when  may  dispose  of  his  interest,  §  863. 
when  cannot  dispose  of  his  interest,  §  867. 
of  trust.     See  Trust. 
BENEFIT,  consent  of  party  entitled  to,  necessary 
to  transfer  of  burden,  §  1457. 
voluntary     acceptance    of,    is    assumption    of, 

§  1589. 
he  who  takes,  must  bear  burden,  §  3521. 
BENEFIT  SOCIETIES,  right  to  form,  p.  723,  §  1, 
Stat. 
how  formed,  p.  724,  §  2,  Stat, 
formation  of  old  associations  under  statute,  p. 

725,  §  6,  Stat, 
powers  of,  p.  724,  §  3,  Stat, 
burial  plots,  power  to  dispose  of,  §  598. 
by-laws,  p.  725,   §5,   Stat, 
assessments,  p.  724,   §  3,  Stat, 
actions  by  and  against,  p.  724,  §  4,  Stat, 
cumulative  voting  in,  §  307. 
BENEVOLENCE.     See  Charitable  Uses. 

corporations    for    purposes    of.    See    Corpora- 
tions. 
BICYCLES,  as  luggage,  §  2181. 
BIDDERS.     See  Auctions. 

BIGAMY,  ground  for  nullifying  marriage,  §  82. 
BILLS     OF     EXCHANGE,     CHECKS,     NEGO 
TIABLE     INSTRUMENTS,    PROMISSORY 
NOTES,  defined,  §  3171. 
may  give  name  of  second  drawee  in  case  of 

need,  §  3172. 
may  be  in  set,  §  3173. 
Avhen  must  be  in  set,  §  3174. 
presentment  of  one  of  set  sufficient,  §  3175. 
^vhere  payable,  §  3176. 
draAver   of,  has  same    obligations,  etc.,  as    in 

dorser,  §  3177. 
days  of  grace  not  allowed  on,  §  3181. 
apparent  maturity  of,  §  3134. 
Acceptance— agent  for    collection    must  present 
for,  §  2021. 
how  made,  §  3193. 
must  be  in  writing,  §  3194. 
how  made,  by  consent  of  holder,  §  3195. 
by  refusal  to  return,  §  3195. 
by  separate  instrument,  §  3196. 


INDEX.  867 

BILLS  OF  EXCHANGE,  etc.— Contiiiuerl. 
Acceptance — promise  to  accept,  when  equivalent 
to,  §  3197. 

may  be  canceled,  when,  §  3198. 

what  is  admitted  by,  §  3199. 

for  honor,  when  allowed,  §  3203. 

for  honor,  holder  not  bound  to  receive,  §  3204, 

for  honor,  how  made,  §  3205. 

for  honor,  how  enforced,  §  3206. 

bill  drawn  on  drawer  and  accepted  is  promis- 
sory note.  §  325.5. 

for  honor,  notice  for  dishonor  not  excused  by, 
§  3207. 

payment,  for  honor,  must  be  received  bv  hold- 
er, §  3204. 

for  honor,  how  made,  §  3205. 

presumptive  dishonor  of.  pavable  after  sisrht, 
§  3133. 
Presentment— for      acceptance,      when       made, 
§§  3185,  3189. 

for  acceptance,  by  whom  made.  §  3186. 

for  acceptance  to  joint  drawees.  §  3187. 

for    acceptance   to   drawee   in    case  of    need, 
§  3188. 

for  pavment,  where  made,  §§  3211,  3212. 

for  payment,  effect  of  delay  in,  §§  3213,  3214. 

for  acceptance,  when  excused,  §§  3218,  3219. 

drawer  actino-  fraudulently  not  entitled  to  no- 
tice. §  3220. 
Foreign— defined,  §  3224. 

notice  of  dishonor,  how  given,  §  3225. 

protest,  by  whom  made.  §  3226. 

protest,  how  made,  §  3227. 

protest,  where  made,  §  3228. 

protest,  when  made,  §  3229. 

protest,  when  excused,  §  3230. 

notice  of  protest,  how  given.  §  3231. 

notice  of  protest  may  be  waived,  §  3232 

how  paid  for  honor,  §  32.33. 

damages  for  dishonor,   ^  3234,  3235. 

interest  as  damages  for  dishonor,  §  3236. 

damages  for  dishonor,  how  estimated  in  fed- 
eral money,  §  323 1. 

damages  for  dishonor,  how  estimated  in  for- 
eiirn  money,  §  32.38. 
BILL  OF  LADING  defined.  §  2126. 

ne-otiable,  §§  2127,  2128. 

effect  of,  on  carrier.  §  2129. 

consignor  entitled  to,  §  2130. 


868  INDEX. 

BILL  OF  LADING— Contiuued. 
effect  of  refusal  to  give,  §  2130. 
delivery  to  holder  of,  sutRcient,  §  2131. 
carrier    may    require    surrender   on   delivery, 

§  2132. 
effect  of  accepting,  from  carrier,  §  21  <  6. 
BOARUIISG-HOUSE  KEEPERS,  lien  on  baggage, 

§  1861. 
sale  of   unclaimed   baggage   for    storage,  etc., 

§  1862. 
posting  of  statement  of  charges  by,  §  1863. 
BOARDS  OF  TRADE,  act  providing  for  forma- 
tion of,  p.  737,  Stat. 
BONA  FIDE  PURCHASER,  presumption  in  favor 

of  on  purchase  of  property  from  husband  or 

wife,  §  164. 
prioritv      between     and     judgment      creditor, 

§   1214. 
rishts     as     against     unrecorded     instruments, 

§§  1214,  1217. 
rights  as  against   implied    or   resulting    trust, 

§  856. 
BONDS,  incorporations  for  giving,  p.  725,  Stat, 
restricting  issue  of  by  corporations,  §  359. 
negotiable,  remains  so  after  dishonor,  §  3262. 
religious  societies  may  issue  bonds,  §  598. 
corporation  formed  to  act  as  security,  p.  725, 

Stat. 
BORROWER, 
For  Use.  ' 

does  not  acquire  title,  §  1885. 
must  use  what  care,  §  1886. 
of  animals,  obligations  of,  §  1887. 
must  use  what  skill,  §  1888. 
must  repair  negligent  injuries,   §  1889 
may  use  thing,  for  what  purpose,  §  1890. 
must  not  relend,  §  1891. 
must  bear  what  expenses,   §  1892. 
when  lender  must  indemnify,  §§  1893,  1894. 
must  return  thing  borrowed,  without  demand, 

§  1895. 
must  return  thing  borrowed,  where,  §  1896. 
For  Exchange, 
acquires  title,  §  1904. 
must  bear  all  expenses,  §  1904. 
cannot  be  required  to  return  loan  before  what 

time,  §  1905. 
Of  Money, 
must  repay  in  current  money,  §  1913. 
See  Loan. 


INDEX.  869 

BOTTOMRY.    See   Respondentia. 

defined,  §  3017. 

extent  of  insurable  interest  of  ship  hypothe- 
cated by,  §  260. 

owner  may  hypothecate    upon,   in    any   case, 
§  3018. 

shipmaster     may     hypothecate     upon,     when, 
§§  3019-3021. 

rate  of  interest  upon,  §  3022. 

rights  of    lender    upon,  when    not    necessary, 
§  3023. 

stipulation  for  personal  liability  under,  void, 
§  3021. 

loan  upon,  when  due,  §§  3025,  3026. 

lien  of,  how  lost,  §302(. 

lien  of,  takes  priority  over  other  liens,  when, 
§  3028. 

priority  of  several  liens  of,  §  3029. 
See  Lien. 
BOUNDARIES,  by  water,  §  830. 

by  way,  §831. 

coterminous  owners  bound  to  maintain,  §  841. 
BRIDGE   CORPORATIONS.    See  Corporations. 
BROKERS,  authority  to  be  in  writing,  §  1624. 
BUILDING  AND  LOAN  ASSOCIATIONS,  defini- 
tion of  building  and  loan  associations,  p.  735, 
§20,  Stat. 

act  imposing  tax  on   stoclis   not   applicable  to, 
§  64812. 

annual  report.  §  644. 

arrears  in  payments,  §  639. 

articles  of  incorporation,  §  033. 

borrow  money.  §  641. 

"building  and  loan  association,"  term,  what  in- 
cludes. §  648. 

capital  stock.  §  634. 

certificates  of  stock,  §  634. 

definition  of,  §  648. 

entrance  and  transfer  fee,  §  634. 

existing  associations  mav  elect  to  continue  bus- 
iness. §  646. 

licenses,  p.  733,  §  17.  Stat. 

license,  revocation  of.  p.  733,  §  17,  Stat. 

license,  failure  of  association  to  take  out  is  a 
misdemeanor,  p.  733,  §  17,  Stat. 

fines.   §  634. 

forfeiture,  §  639. 

foreign  corporations  doing  business,  deposit  bv, 
§  633. 

formation  of,  §  633. 

free  shares  may  be  retired.  §  635. 


J-70  INDEX, 

BUILDING  ETC.  ASSOCIATIONS— Continued, 
loan  and  interest,  when  may  be  repaid,  §  638. 
matured  value,  §  636. 
maturity  of  stoclv,   §  636. 
may  buy  real  estate,  §  640. 
membership,  §  643. 
money  to  be  loaned,  §  637. 
one-third  of  receipts    only  applicable  to    pay- 
ment of  matured  shares,  §  636. 
profits  and  losses,  §  642. 
rate  of  interest,  §  638. 
retirement  of  shares,  §  635. 
withdrawal  of  stockholders,  p.  735,  §  19,  Stat, 
six    montlis'  arrears    and  two    months'    notice 

worli  a  forfeiture,  §  639. 
subject  to  tlie  provisions  relating  to  the  bank 

commissioners,  §  647. 
foreign,  claim  against,  §  645. 
duty  to  keep  record  of  transactions,  p.  730,  §  7, 

Stat, 
board  of  commissioners  of,  p  727,  §  1,  Stat, 
subject    to    supervision   and    examination   of 

commissioners,  p.  727,   §  1,   Stat, 
commissioners,   duties   of,   p.   728,  §  4,  et  seq., 

Stat, 
board  of  commissioners,  their  duties  and  pow- 
ers,  p.   727,    Stat, 
commissioners  of,  qualification  of,  p.  728,  §  4, 

Stat, 
commissioners  of,  salary,  p.  728,  §  2,  Stat, 
commissioners,  secretary  of,  p.  728,   §  2,   Stat, 
commissioners,     rent,     stationery,    fuel,     etc., 

p.  728,  §  3,  Stat, 
commissioners,   office,    where   kept,  p.  728,  §  3, 

Stat, 
commissioners,  refusal  of  trustees  to  be  sworn, 

p.  730,  §  8,  Stat, 
commissioners,  swearing  of  trustees  by,  p.  730. 

§  8,  Stat, 
commissioners,  assessment  to  pay  expenses  of. 

p.  732,  §  15,  Stat, 
commissioners,  powers  of,  p.  730,  §  8,  et  seq., 

Stat, 
commissioners,   duty  of  to  report  to  attorney 

general,   p.   731.   §   10,   Stat, 
commissioners,  failure    to    report    to    attorney 

general,  punishment  of,  p.  731,  §  10,  Stat, 
annual  report  of  association  to  commissioners, 

p.  734,  s-  18,  Stat, 
appraisers  to  appraise  value  of  assets,  p.  780, 

§7,  Stat. 


INDEX.  871 

BUILDING  ETC.  ASSOCIATIONS— Coutiimed. 

commissioners,      examining     into     affairs    of, 
p.  732.  §  12,  Stat. 

appraisement  of  value  of  securities,  p.  730,  §  7, 
Stat. 

proceedings  against  where  conducting  hazard- 
ous business,  p.  730,  §  9,  Stat. 

attorney  general,  duty  of  where  business  is  be- 
ing conducted  hazardously,  p.  730,  §  9,  Stat. 

assessment,  how  collected,  p.  733,  §  16,  Stat. 

receiver,  appointment  of,  p.  730,  §  9,  Stat. 

receiver,   examinius-     into     acts   and  conduct, 
of,  p.  730,  §  9,  et  seq.,  Stat. 

schedule  of  assets  on  appointment  of  receiver, 
p.  731,  §  11.  Stat. 
BURDEN,  consent  of  party  entitled  to  benefit  nec- 
essary to  transfer  of,  §  1457. 

voluntary  acceptance  of  benefit  is  assumption 
of,  §  1589. 

he  who  talves  benefit  must  bear.  §  3521. 
BURDE>  OF  PROOF,  on  whom  to  prove  want  of 

consideration  in  writing.  §  1615. 
BURIAL,     lot   inalienable    "after   burial    therein, 
§  613. 

risht  of,  as  easement.  §  801. 

rio-ht  of,  as  servitude.  §  802. 
BUSINESS  days,  what  are,  §  9. 

right  of    transacting,    on    land,  an    easement, 
§  801. 

good-will  of,  subject  of  ownership,  §  665. 

good-will  of,  transferable.  §  993. 

good-will  of,  defined.  §  992. 

contract  not  to  pursue,  how  far  void,  §  1673. 

general  partner  must  not  engage  in  separate, 
§§  2436,  2437. 

liabilitv    of    partner     engaging     in     separate, 
§  2438. 

co-operative  business  corporations,  p.  749,  §  1, 
Stat. 
BUYER.     See  Sale. 

BY-BIDDING  at  auction,  a  fraud.  §  1797. 
BY-LAWS.     See  Corporations. 

of  benefit  society,  p.  725,  §  5.  Stat. 
CANAL  CORPORATIONS.    See  Corporations. 
CANCELLATION  of  grant  of  real  property  does 
not  revest  title.  §  1058. 

of  will,  when  operates  as  revocation,  §  1292. 

of  will,  proof,  how  made,  §  1293. 

of  written  contract,  §  1699. 

of    ncceptance    by    acceptor,     when    allowed, 
§  3198. 


872  INDEX. 

CANCELLATION— Continued. 

of  written  instrument,  adjudged,  when,  §  3412. 

of    written    instrument,   void  on  face  not  al- 
lowed, §  3413. 

of  written  instrument,  partial,  may  be  adjudg- 
ed, §  3414. 
CARE.    See  Negligence;  Skill. 
Slight,  gratuitous  depositary  to  use,  §  1846. 

gratuitous  employee,  §  1975. 

gratuitous  carrier  of  property,  §  2114. 
Ordinary,  depositary  for  hire  to  use,  §  1852. 

hirer,  §  1928. 

employee  for  reward,  §  1978. 

voluntary  agent,  §  2078. 

gratuitous  carrier  of  persons,  §  2096. 

carrier  of  property  for  reward,  §  2114. 

trustee,  §  2259. 
Great,  borrower  to  use,  §  1886. 

employee  for  his  own  benefit,  §  1979. 

shipmaster,  §  2043. 

carrier  of  messages  for  reward,  §  2162. 

utmost,  carrier  of  persons  for  reward  to  use, 
§  2100. 

carrier  of  messages  bv  telegrapli,  §  2162. 
CARELESSNESS.    See  Care;  Negligence. 
CARGO,  sacrifice    may  be    made  for    safety    of, 
§  2148. 

such  sacrifice  must  be  borne  ratably,  §  2151. 

how  valued  on  general  average,  §  21.53. 

shipmaster  agent  for  owners  of,  §  2375. 

ship's  manager    has    not    power    to    purchase, 
§  2389. 

seaworthiness  of  ship  for  purpose  of  insuring, 
§  2687. 

insurance    on,   when    voyage    is    brolcen    up, 
§  2707. 

shipmaster  may  sell,  when,  §  2379. 

shipmaster    may    hypothecate,  when,   §§  2377, 
3038. 

hypothecation  of.  under  respondentia,  §§  3036- 
3038. 

owner  of,   entitled  to  repayment    from    ship- 
owner of  amount  paid  under  respondentia, 
§  3040. 
See  General  Average;  Respondentia. 
CARRIERS.    See   Freight   and   Freightage;   Rail- 
roads. 

defined,   §  2168. 

contract  of  carriage,  defined,  §  2085. 

different  liinds  of,  §  2086. 

marine  and  inland  carriers  defined.  §  2087. 


INDEX.  873 

ARRIERS— Continued. 

must  accept  what  is  offered,  §  2169. 

when  must  not  give  preference.  §  2170. 

may  give  preference  to  government,  §  2171. 

must  start  when,  §  2172. 

compensation  of,  §  2173. 

obligations  of.  how  modified  by  agreement  or 
no^tice,  §  2174. 

cannot  be  relieved  from  certain  liabilities,  § 
2175. 

effect  of  written  contract  of,  §  217G. 

mortgage  of  property  of,  where  to  be  recorded. 
§  2961. 

duties  of  carriers  by  sea,  §  2088. 

gratuitous,  obligations  of,  §§  2089,  2090. 

has  insurable  interest,    §   2548. 

consignment.    See  Consignment. 
'Freightage,  defined,    §  2110. 

when  payable,  §  2136. 

consignor,  when  liable  for,  §  2137. 

consignee,  when  liable  for,  §  21.38. 

on  what  chargeable,  §  2189. 

when  apportioned,  §§2140-2142. 

in  case  of  extra  i3erformauce,   §  214?. 

lien  for,  §  2144. 

of  messages,  by  telegraph,  must  transmit  in 
what  order,  §  2207. 

in  other  cases,  must  transmit  in  what  order, 
§  2208. 

liability  for  improper  delay,   §  2207. 

must  deliver,  how,  §  2161. 

degree  of  care  and  diligence  required  of,  §  2162. 
Of  persons,  must  carry  luggage,  §  2180. 

luggage.     See  Luggage. 

liability  of,  for  luggage.  §  2181. 

must  deliver  luggage,  when,  §  2183. 

bicycles  as  luggage,  §  2181. 

gratuitous,  obligations  of,   §  2096. 

for  reward,  must  use  utmost  care,  §  2100. 

for  reward,  must  provide  safe  vehicles,  §  2101. 

for  reward,  must  not  overload  vehicles, 
§§  2102,  2185. 

for  reward,  must  afford  reasonable  accommo- 
dation, §  2103. 

for  reward,  must  travel  without  delay,  §  2104. 

passengers.     See  Passengers. 

refusal  to  sell  ticket  to  emigrant,  when  a  mis- 
demeanor. See  Penal  Code,  Appendix,  title 
Emigrants. 

for  reward,  must  i^rovide  sufficient  accom- 
modation, §  2185. 


874  INDEX. 

CARRIERS— Continued. 

for  re^vard,  must  provide  vehicles,  §  2184. 

for  reward,  regulations  for  conducting  busi- 
ness, §  2186. 

for  reward,  contributory  negligence  of  passen- 
ger, §  2186  n. 

for  reward,  may  demand  fare,  when,  §  2187. 

for  reward,  may  eject  passenger  for  nonpay- 
ment of  fare,  §§  2188,  2189. 

for  reward,  cannot  demand  payment  after  ejec- 
tion, §  2190. 

for  reward,  has  lien  on  luggage,  §  2191. 

of  property,  for  reward,  must  use  ordinary 
care,    §   2114. 

gratuitous,  must  use  slight  care,  §  2114. 

must  obey  directions,  §  2115. 

duties  of,  in  case  of  conflicting  orders,  §  2116. 

must  not  stow  freight  on  deck,  §  2117. 

must  not  deviate,   §  2117. 

must  not  vitiate  insurance  on  freight,  §  2117. 

must  deliver  freight  where,  §§  2118,  2119. 

must  give  notice  of  arrival  when,  §  2120. 

may  terminate  liability  how,  §  2121. 

may  place  in  warehouse  when,  §  2122. 

must  give  bills  of  lading,  §  2126. 

may  deliver  freight  to  holder  of  bill  of  lad- 
ing, §  2130. 

when  may  demand  surrender  of  bill  of  lading, 
§  2131. 

may  throw  freight  overboard,  when,  §  2148. 

notice  must  be  given  to,  to  efCect  stoppage  in 
transit,   §  3079. 

duties  of,  in  respect  to  freight  going  beyond 
its  raute,  §  2201. 

must  give  evidence  of  cause  of  loss,  §  2202. 

obligations  of,  in  other  respects,  §  2203. 

liability  of,  for  loss,  §§  2194,  2200. 

liability  of,  for  delay,  §  2196. 

liability  of,  for  negligence.  §  2195. 

marine,  liability  of,  §§  2197,  2198. 
CEMETERIES,  cemetery    corporations.    See   Cor- 
porations. 

power  of  benevolent  or  religious  society  to  dis- 
pose of  burial  plot,  §  598. 

disinterment  or  transportation  of  dead  bodies, 
see  Penal  Code,  Appendix,  title  Public 
Health. 

pernut  to  remove  dead  bodies,  see  Penal  Code, 
Appendix,  title  Public  Health. 

cemetery  corporations,  acts  relating  to,  p.  736, 
Stat. 


INDEX.  875 

CERTIFICATE   of  indentures  of   apprenticeship, 
§  275. 
false,  by  officer  of  corporation,  §  316. 
for  continuing  corporate  existence  of  corpora- 
tion, §  405. 
of  ship-master  as  to  exertion  of  seamen  to  save 

ship,  §  2059. 
of  names  of  partners,  §  24G8. 
of   proof    of   loss  under    insurance,  when    dis- 
pensed with,  §  2037. 
of  discharge  of  mortgage  to  be  filed  with  re- 
corder, §§  2939,  29-40. 
of  acknowledgment.    See  Acknowledgment, 
of  incorporation.     See  Corporations, 
of  marriage.     See  Marriage, 
of  partnership.     See  Partnership, 
of  stock.    See  Corporations, 
act   legalizing   defective  acknowledgments,   p. 
703  et  seq.,  Stat. 
CHAMBERS  OF  COMMERCE,  act  to  provide  for, 

p.  737,  Stat. 
CHARITABLE   USES,   what  valid,    §847. 

restriction  on  power  to  devise  to,  §  1313. 
CHARTER  PARTY  defined  and  regulated,  §  1959. 
shipmaster  may  enter    into,  in    foreign    port, 

§  2376. 
ship's  manager  may  enter  into,  §  2388. 
certain  insurable  interest  exists  under,  §  2663. 
insurable  interest  of  charterer.  §  2665. 
CHASTITY,  want  of  personal,  avoids  promise  to 

marry  made  in  ignorance  of  fact,  §  62. 
CHATTEL  INTEREST  defined,  §  765. 
CHATTEL  MORTGAGE.     See  Mortgage. 
CHATTEL  REAL  defined,  §  675. 

when  estate  for  life  of  third  person  becomes, 

§  766. 
limitation  of,  §  770. 
CHECK,  a  negotiable  instrument.  §  3095. 
defined.  §  3254. 

etfect  of  delay  in  presentment  of,  §  3255. 
title  of  indorsee  to,  without  notice  of  dishonor, 
§  3255. 
CHILD.    See  Parent  and  Child. 

en  ventre  sa  mere,  rights  of,  §  29. 
CHOSES  IX  ACTION  defined,  §  953. 
transfer  of  and  survivorship  in,  §  954. 
value  of,   how  determined   in  assessing  dam- 
ages, §  356. 
CHURCH,  right  to  seat  in,  as  easement,  §  801. 
right  to  seat  in,  as  servitude,  §  802. 


876  INDEX. 

CHURCH— Continued. 

corporations   for   maintenance  of,    §   286. 
CmCUMVENTION.    See  Fraud. 

contract  obtained  by  not  enforced,  §  3391. 
CITIES,  grant  of  lands  of  state  in,  for  railroad 
purposes,  §  475. 
lease  of  lots,  void  when,  §  718. 
CIVIL  CODE.     See  Code,  Civil. 
CLERK    OP    COUNTY,  duty  of,  regarding  mar- 
riage licenses,  §  69. 
articles  of  incorporation  to  be  filed  with,  §  296. 
of  court  of  record  may  take  aclvnowledgment, 

§  1181. 
duty  of,  where  acknowledgment  is  taken  by 

justice  of  peace,  §  1194. 
petition  for  appraisement  of  homestead  to  be 

filed  with,  §  1247. 
must  keep  register    of    partnership    names,   § 

2470. 
certificate  of  formation  of  special  partnership 

to  be  filed  with,  §  2480. 
notice  of  dissolution  of  special  partnership  to 
be  filed  with,  §  2509. 
CODE,  CIVIL,  title  of,  §  1. 
when  takes  effect,  §  2. 
not  retroactive  unless  so  declared,  §  3. 
construction  of,  §§4,  5. 
affects  no  action  commenced  or  right  accrued 

before  its  taking  effect,  §  6. 
effect  on  existing  statutes,  §  20. 
how  cited,  §  21. 

effect  of  amendments  of  1874  to,   §  5,  note. 
CODICIL,  included  in  term  "will."  §  14. 
execution  of.  republishes  will,  §  1287. 
revocation  of  will  revokes,  §  1305. 
COHABITATION,  when  prevents  nullifying  mar- 

riaa-e,  §  82. 
COLLATERAL  AVARRANTIES  abolished,  §  1115. 
COLLECTION,  agent  for,  duties  of,  §  2021. 

partner  acting  in  liquidation  may  make,  §  2461. 
effect  of  warranty  of,  §  2800. 
COLLEGES,     corporations    for    maintenance    of, 
§  286. 
formation  of  corporation,   §  649. 
powers  of  trustees,  §  650. 
transfer  of  property  to,  §  651. 
consolidation  of,  effect  of,  §  653. 
consolidation  of,  transfer  of  property,  §  653. 
authorized  to  consolidate,  §  652. 

-  -  -  -    "  652. 


1 


INDEX.  87T 

COLLISION,  rules  for  avoiding,  §  970. 

from  breach  of  rules  of  navigation,  §  971. 
from   breach  of  rules    of    navigation    implies 

willful  default,  §  972. 
loss  by,  how  apportioned,  §  973. 
COLLUSION,  divorce  must  be  denied  on  showing, 
§  111. 
defined,  §  114. 

presumption  of,  established  by  lapse  of  time, 
§  125. 
COMBINATIONS,  act  to  prevent  In  sale  of  live- 
stock of,  p.  705,  et  seq. 
COMMERCIAL  PAPER.    See  Bills  of  Exchange; 
Checks;  Negotiable  Instruments;  Promissory 
Notes. 
COMMISSIONER  OF  DEEDS.    See  Acknowledg- 
ments. 
COMMON  CARRIERS.    See  Carriers. 
COMMON  LAW,  rule  of,  consti'uction  of  statutes 
in  derogation  of,  not  applicable  to  Code,  §  4. 
rule  of  decision. 

Civil  Code  considered  continuation  of,  §  5. 
COMMUNICATION,  privileged,  §  47. 

private,  in  -writing,  ownership  of,  §  985. 

of  consent,  essential  to  contract,  §  1565. 

of  consent  to  contract,  how  made.  §§  1581.  1582. 

of  consent  to  contract,  when  complete,  §  1583. 

upon  insurance,  what  must  be  made,  §  2563. 

upon     insurance,    what    need    not    be    made, 

§  2564. 
upon  insurance,  of  nature,  etc.,  of  interest  not 

required,  wheij,  §  2568. 
upon  insurance,  on  matters  of  judgment,  un- 
necessary, §  2570. 
upon  reinsurance,  what  required,   §  2647. 
upon  marine  insurance,  what  required,  §  2669. 
of  acceptance  of  offer  to  guarantee,  necessary, 
§  2795. 
COMMUNITY     PROPERTY.    See    Husband    and 

Wife. 
COMPENSATION    of    appraisers   of    homestead, 
§  1258. 
of  depositarv  for  hire,  §  1853. 
of  finder,  §  1867. 

borrower  entitled  to  certain,  §§  1892,  1894. 
for  loan  called  interest,  §  1915. 
duties  of  employee  for,  §  1978. 
in  case  contract  of  service  is  continued  beyond 

two  years,  §  1980. 
Civ.  C'  de— 74 


878  INDEX. 


I 


COMPENSATION— Continued. 

continuing  services  alter  death    of    employer, 

§  1998. 
of  employee  dismissed  for  fault,  §  2002. 
of  employee  quitting  for  cause,  §  2003. 
managing  owner  of  sliip  not  entitled  to,  §  2072. 
of  voluntary  depositary,  §  2078. 
of  common  carrier,  §  2173. 
of  trustees,  §§  2273,  2274. 
partner  not  entitled  to,  §  2413. 
lienor  not  entitled  to,  §  2892. 
generally  given  by  law,  §  3275. 
for  mistake,  when  allowed,  §  3391. 
for  partial  failure  to  perform,  §  3392. 
may  be  required  on  rescission,  when,  §  3408, 
of  assignee  for  benefit  of  creditors,  §  3471. 
COMPOUND  INTEREST.     See  Interest. 
COMPUTATION  of  time,  §§  10,  14. 

of  term  of  suspension  of  power  of  alienation, 

§  912. 
of  period  of  minority,  §  26. 
CONCEALMENT.     See  Fraud, 
avoiding  condonation,  §  120. 
by  trustee  when  fraudulent,  §§  2228,  2234. 
partner  not  to  obtain  advantage  by,  §  2411. 
in  insurance.     See  Insurance. 
CONDITION  in  indentures  of  apprenticeship,   §§ 

271,  272. 
of  ownership,  §  707. 
kinds  of,  of  ownership,  §  708. 
of  ownership,  when  void,   §  709. 
restraining  marriage,  when  void,  §  710. 
restraining  alienation,  when  void,    §  711. 
delivery  of  grant  to  grantee  on,  void,  §  1056. 
grant  may  be  deposited  with  third  person,  to 

be  delivered  on  performance  of,  §  1057. 
tenant  without  notice  not  liable  for  breach  of, 

of  lease,  §  1111. 
kinds  of,  in  obligations,  §  1434. 
performance  of,  when  excused,  §  1440. 
impossible  or  unlawful,  void,  §  1441. 
offer  of  performance  must  be  free  from  what, 

§  1494. 
of  proposal,   must  be  fulfilled  by  acceptance, 

§  1582. 
of    proposal,  performance    of,   is    acceptance, 

§  1584. 
failure  to  perform  revokes  proposal,  §  1587. 
written,    governing    auction    sale,    not    to    be 

modified  orally,  §  1795. 


I 


INDEX.  879 

CONDITION— Continued. 
ConcuiTent,  in  obligations,  what,  §  1437. 

what  may  depend  on  performance  of,  §  1498. 
Precedent,    grant   on,    only   an     executory   con- 
tract, §  1110. 
in  will,  what,  §  1346. 
in  will,  effect  of,  §  1347. 
in  will,  when  deemed  performed,  §  1348. 
in  obligations,  what,  §  1436. 
when  must  be  performed,  §  1439. 
what  may  depend  on  performance  of,  §  1498. 
Subsequent,  condonation  implies  certain,  §  1117. 
right  of  re-entry  for  breach  of,   transferable, 

§  1046. 
property  to  be  reconveyed  on  nonperformance 

of,  §  1109. 
in  will,  what,  §  1349. 
in  obligations,  what,  §  1438. 
CONDONATION.     See  Divorce. 
CONFINEMENT,  unlawful  or  fraudulent,  avoids 
contract,  §  1569. 
master  of  ship  may  subject  seamen  to,  §  2037. 
master    of    ship    may    subject    passengers    to, 
§  2038; 

See  Duress. 
CONFUSION  OF  GOODS.     See  Accession. 

ownership  of  things,  formed  by,  §§  1025-10.32. 
CONNIVANCE,  divorce  must  be  denied  on  show- 
insr,  §  111. 
defined,  §  112. 
how  manifested,   §  113. 
presumption  of,  in  certain  cases,  §  125. 
contract  obtained  through,  voidable,  §  1689. 
CONSENT,  of  parties  necessary  to  marriage,  §  55. 
alone  does  not  constitute  marriage,  §  55. 
who  are  capable  of  giving,  to  marriage,  §  56. 
to  marriage,  how  manifested  and  proved,  §  57. 
incapacity  to,  when  ground  for  annulling  mar- 
riage, §  82. 
separation  by,  not  desertion,  §  99. 
to  separation,  a  revocable  act,  §  101. 
corrupt,  §  112. 

corrupt,  how  manifested,  §  113. 
mutual,  sufficient  consideration  for  agreement 

to  separate,  §  160, 
of  husband  not  required  for  transfer  of  wife's 

separate  property,  §  162. 
written,  of  mother,  necessary  to  transfer  cus- 
tody of  child,  §  197. 
of  wife,  necessarv  for  married  man  to  adopt 
child,  §  223. 


880  INDEX. 

CONSENT— Continued. 

of  child's  parents    necessary  to    adopt    child, 
§  224. 

of  child,  when  necessary  for  its  adoption,  §  225. 

for  apprenticeship  of  child,  §§265,  266. 

of  party  entitled  to  benefit  necessary  to  trans- 
fer of  burden,  §  1457. 

contract  may  be  rescinded  by  mutual,  §  1689. 

thing   obtained   without,   of  owner,   to   be  re- 
stored, §  1712. 

of  depositor  necessary  to    use    of    deposit    by 
depositary,  §  1835. 

of  landlord  necessary  to  attornment  to  stran- 
ger, §  1948. 

of   principal,  necessary    to    release    of    factor, 
§  2030. 

voluntary  interference  with  property  without, 
§  2078. 

•of  beneficiary,   necessary  to  allow  trustee  to 
hold  adverse  interest,  §  2233. 

mutual,  necessary  to  create  trust,  §  2251. 

not     necessary    to     rescission    of    ratification, 
§  2314. 

of  all,   necessary  to   creation   of  partnership, 
§  2397. 

unanimous,   necessary  to    admission    of    new 
partner,  §  2397. 

not  necessary  to  create  guaranty,  §  2788. 

to  contract.     See  Contract. 
CONSIDERATION,  valuable,  defined,  §  14. 

minor  must  restore,  on  disaSirmance  of  con- 
tract, §  35. 

mutual  consent  to  separation  sufficient,  §  160. 

effect  of  transfer  where  paid  by  third  party. 
§  853. 

not  necessary  to  validity  of  voluntary  trans- 
fer, §§  1040,  1146. 

old  obligation  extinguished  by  new,  §  1541. 

written  instrument  prima  facie  imports,  §  1614. 

on  whom  falls  burden  of  proof  to  show  want 
of  sufiicient,  §  1615. 

good,  defined,  §  1605. 

how  far  moral  obligation  is  good,  §  1606. 

must  be  lawful,  §  1607. 

effect  of  illegality  of,  §  1608. 

may  be  executed  or  executory,  §  1609. 

executory,  need  not  be  specified,  §  1610. 

executory,  how  ascertained,  §  1611. 

effect  of  impossibility  of  ascertaining,  §§  1612, 
1613. 

contract  may  be  altered  without  new,  §  1697. 


INDEX.  881 

CONSIDERATION— Continued. 

not  necessary  to  create  agency,  §  2308. 

necessary  to  guaranty,  when,  §  2792. 

need  not    be    expressed    in    written    guaranty, 

§  2793. 
presumption    of,    in    negotiable    instruments, 

§  3104. 
effect  of  want  of,  in  negotiable  instruments,  § 

3122. 
of  contract.    See  Contract. 
CONSIGNMENT,  defined,  §2110. 

carrier  must  obey  consignee,  when,  §  2116. 
when  carrier  must  obey  consignor,  §  2116. 
storage  of  freight  on  decli,  §  2117. 
freight  to  be  delivered  to  consignee,   §§  2118, 

2119. 
notice  of  arrival  of  freight  to  be  given  to  con- 
signee, §  2120. 
when  consignee  refuses  to  accept,  freight  may 

be  stored,  §  2121. 
consignee  liable  for  freightage,  when,  §§  2137, 

2138. 
effect  of    acceptance  of    part    performance,   § 

2141. 
assent  of  consignee  to  special  contract,   how 

proved,  §  2176. 
consignor  may  stop  goods  in  transit  on  insol- 

vencj'  of  consignee,  §  3076, 
what  is  insolvency  of  consignee,  §  3077. 
CONSTRUCTION.      See  Contract— Interpretation. 
CONSTRUCTIVE  notice  defined,  §§  18,  19. 
delivery,  §  1059. 
fraud,  defined,  §  1573. 
CONSUL  of  United  States  may  take  acl^nowledg- 

ments,  §  1183. 
CONTEMPT,  ofiicer  taking  acknowledgment  may 

punish  for,  §  1201. 
CONTINGENT  INTEREST,  defined,  §  695. 

not  void  because  improbable,  §  697. 
CONTINGENT  REMAINDER  on  prior  remainder 
in  fee,  §  772. 
how  credited,  §  773. 
on  term  of  years,  §  776. 
CONTINUANCE  of  existence  of  corporations,   §§ 

287,  401, 
CONTINUING  GUARANTY,    See  Guaranty. 
CONTRACTS.     See  Obligations, 
alteration.    See  Alteration, 
conditional  alternative.    See  Alternative, 
cancellation.    See  Cancellation. 


882  INDEX. 

CONTRACTS— Coutiniied. 

rescission.    See  Kescission. 

parties,  wlio  may  be,  §  155G. 

when  minors,  etc.,  may  be  parties,  §  1557. 

must  be  capable  of  ideutiUcation,  §  1558. 

for  benefit  of  third  person  may  be  enforced  by 

him,  §  1559. 
minor  may    mals;e,   subject    to    disaffirmance, 

§  34. 
of  minor,  when  and  how  disaffirmed,  §  35. 
minor   or  insane  person   cannot   disaffirm  for 

necessaries,  §  36. 
person  entirely  without  understanding  cannot 

make,  §  38. 
when  person  of  unsound  mind  may  make,  §  39. 
when  person  of  unsound  mind  cannot  make, 

§40. 
husband  and  wife  may  make,  §  58. 
Creation,  by  express  words,  §  1620. 
by  implication.    §  1621. 
orally,  §1622. 
by  writing,  §§  1623,  1624. 

by  writing  supersedes  oral  negotiations,  §  1625. 
by  writing,  when  takes  effect,  §  1626. 
by  writing,  delivery  necessary  to,  §  1627. 
provisions  abolishing  seals,  §  1629. 
proposal  and  acceptance.     See  Proposal. 
Consideration,  good  defined,  §  1605. 
how  far  moral  obligation  is  good,  §  1606. 
must  be  lawful,  §  1607. 
effect  of  illegality  of,  §  1608. 
may  be  executed  or  executory,  §  1609. 
executory,  need  not  be  specified,  §  1610. 
executory,  how  ascertained,  §  1611. 
effect  of  impossibility  of  ascertaining,  §§  1612, 

1613. 
contract  may  be  altered  without  new,  §  1697. 
consideration.    See  Consideration. 
Validity,  defined,  §  1667. 
certain  contracts  declared,  §  1668. 
fixing  damages,  §  1670. 
exception,   §  1671. 

restraining  trade,   when   void,    §  1673. 
restraining  trade,  when  not.  §§  1674.  1675. 
restraining  marriage,  §  1676. 
what  must  be  in  writing,  §  1624. 
illegality  of  object  renders  wholly  void,  when, 

§  1598. 
seamen  not  to  be  deprived  of  wages  or  lien  by, 

§  2052. 


I 


INDEX.  883 

CONTRACTS— Contiiiiie.l. 

with  seamen,  restrictions  on.  §  2053. 
Validity— duress  or  undue  influence  renders  con- 
tract voidable.  §§  1567,  1575. 
Consent,  wlien  deemed  mutual.  §  1580. 

when  deemed  communicated.  §§  1581,  1582. 

when  deemed  complete.  §  1583. 

proposal  of,  when  deemed  accepted,  §  1584. 

acceptance     of    proposal    must    be     absolute, 
§  1585. 

revocation  of  proposal,  §  1586. 

rev(tcation.  how  made.  §  1587. 

voidable,  may  be  ratified.  §  1588. 

acceptance  of  benefit,  when  deemed,  §  1589. 

may  be  rescinded.  §  1689. 

essential  elements  of,  §  1565. 

when  not  free,  not  void  but  voidable,  §  1566. 

apparent,  when  not  free,  §  1567. 

when  deemed  obtained  throucrh  fraud,  §  1568. 

duress  in  obtaining,  defined,  §  1569. 

menace  in  obtaining,  defined,  §  1570. 

fraud  in  obtaining,  defined,  §  1571. 

actual  fraud  in  obtaining,  defined,  §  1572. 

constructive  fratid  in  obtaining,  defined,  §  1573. 

undue  influence  in  obtaining  defined,  §  1575. 

mistalie  in  obtaining,  defined,  §  1576. 

mistake  of  fact  in  obtaining,  defined.  §  1577. 

mistalve  of  law  in  obtaining,  defined,  §  1578. 

mistalve  of  foreign  law  in  obtaining,  defined, 
§  1579. 

restraint  of  trade.    See  Restraint  of  Trade. 
Interpretation  and  effect  to  be  uniform,  §  1635. 

to  effectuate  mutual  intention,  §  1636. 

to  ascertain  intention,  §  1637. 

to  be  governed  by  language  used,  §  1638. 

to  be  governed  by  written  words,  §  1639. 

exception  in  cases  of  fraud,  §  1640. 

entire  contract  to  be  considered  in,  §  1641. 

several    contracts   to   be    fallen    together    in, 
§  1642. 

to  be  favorable  to  validity,  §  1643. 

according  to  ordinary  sense  of  words,  §  1644. 

technical  words.  §  1645. 

what  law  governs,  §  1646. 

by  surrounding  circumstances,  §  1647. 

subject-matter  to  be  considered  in.  §  1647. 

to  be  restrained  by  its  object,  §  1648. 

uncertainty  in,  to  be  construed  against,  when, 
§§  1649,  1654. 


884  INDEX. 

CONTRACTS— Continued. 

general  intent  to  prevail  in,  §  1650. 

oriiiinal  and  -u^ritten  parts  in,  to  prevail,  §  1651.      i 
Interpretation— repugnances  in,   §  1652.  | 

repugnances  in,  §  1652.  I 

inconsistent  words  to  be  rejected  in,  §  1653. 

what  stipulation  implied  in,  §  1655. 

incidents  to  contract  implied  in,  §  16-56. 

in  respect  to  time  of  performance,  §  1657. 

when  presumed  to  be  joint  and  several,  §§  1659, 
1660. 

executed  and  executory,  §  1661. 

of  sale  not  revocation  of  will.  §  1301. 

executed,  voluntary  transfer  is,  §  1040. 

executory,    grant    on    condition    precedent    is, 
§  1110. 

conditional     obligation,     involving     forfeiture, 
how  construed.  §  1442. 

non-negotiable  written,  transferable,   §  1459. 
Object,  defined,  §  1595. 

must  be    lawful,    possible,  and    ascertainable, 
§  1596. 

when  deemed  possible,  §  1697. 

when    illeirality    of,  renders    contract    wholly 
void,  §  1598. 
Extinction   and   performance   and   alteration   in 
general,    §  1682. 

by  rescission,  §  1688. 

by  rescission,  in  what  cases,  §  1689. 

certain  stipulations  do  not  prevent  rescission, 
§  1690. 

by  rescission,  how  effected,  §  1691. 

by  alteration,  §  1697. 

sealed,  how  modified,  §  1698. 

by  cancellation  and  destruction.  §  1699. 

by  unauthorized  alteration,  §  1700. 

alteration  of  duplicate  not  prejudice,  §  1701. 

impossibility.    See  Impossibility. 

time,  when  of  essence  of,  §  165S. 

place  of  performance.    See  Place  of  Perform- 
ance. 

offer  of  performance.      See  Offer  of  Perform- 
ance. 

part  performance.    See  Part  Performance. 

performance.    See  Performance. 

prevention  of  performance.    See  Prevention  of 
Performance. 

to  marry,  how  parties  may  be  released  from, 
§62. 

conditional,  delivery  cannot  be  made,  §  1056. 


INDEX.  885 

CONTRACTS— Coiitiniiefl. 

failure  of,  when  .uroimd  for  rescission,  §  1689. 
Extinction— conditional  obligation,  prerequisites 
to  enforcing.   §  1439. 

conditional    obligation,  performance    of,  when 
excused.  §  1440. 

conditional  offer  of  performance,  when  valid, 
§  1494. 

alteration.    See  Alteration. 

contract  in  writing,  when  may  be   altered  by, 
§  1698. 

damages  for  breach.    See  Damages. 

to  convey  real  property,  damages  for  breach  of, 
§  3306. 

to  purchase  real  property,  damages  for  breach 
of,  §  3307. 

to  sell  personal  property,  damages   for   breach 
of,  §§  3308,  3309. 

to  buy  personal  property,  damages  for  breach 
of,  §  3311. 
Particular  contracts.    See  also  particular  title. 

of  a])prenticeship    of    alien    minor,  §  274. 

to  relieve  directors  from  liability,  §  327. 

to  sell  personal  property,  §§  1140,  1739. 

novation,  §  1532. 

novatiou,  definition  of,  §  1549, 

novation,  essential  elements  of,  §  1550. 

novatiou  for  benefit  of  third  person  may  be  en- 
forced bv  him,  §  1559. 

for  sale,  what,  §  1726. 

to  sell,  defined,  §  1727. 

to  buy,  defined,  §  1728. 

to  sell  or  buy,  defined,  §  1729. 

to  sell,  what    may  be    subiect    of,  §  1730. 

to  sell  real  property,  §§  1731,  1741. 

to  sell  real  property  binds  seller  to  insert  cer- 
tain covenauts,  §  1733. 

form  of  such  covenants,  §  1734. 

to  manufacture  from    materials    furnished  by 
m.anufacturer,  §  1740. 

of  sale  with  warranty  entitles  buyer  to  inspect 
goods,  §  1785. 

of  sale  mav  be  rescinded  for   breach    of    war- 
ranty, §  1786. 

certain,  with  common  carrier,  void,  §  2175. 

obligations  of  common  carrier  can  be  altered 
onlv  by,  §  2174. 

effect  of  written,  with  common  carrier,  §  2176. 

express,  not  necessary  to  create  mining  part- 
nership, §  2512. 


886  INDEX. 

CONTRACTS— ContiiuiecL 

not  to  transfer    insured    interest,  wlien    void, 
§  2599. 
Particular  Contracts — of  indemnity,   §  2772. 
certain,  affecting  liens  void,  §  2889. 
what  not  allowed  in    negotiable    instrument, 

§  3093. 
marriage  a  personal    relation    arising    out    of 

civil,  §  55. 
of  separation  by  husband  and  wife,  §  159. 
husband  and  wife  cannot  alter  their  legal  re- 
lation by,  except,  §  159. 
consideration  of  such  contract,  §  160. 
for  payment  of  money  by  wife,  §  167. 
marriage  settlement,  how  executed,  §  178. 
marriage   settlement    must  be    acknowledged 

and  recorded,  §  179. 
effect  of  recording  or  non-recording  marriage 

settlement,  §  180. 
minor  may  make  marriage  settlement,  §  181. 
in  indentures  of  apprenticeship,  §  272. 
conditional  obligation,  §  1434. 
conditional  obligation,  liability  of  guarantor  on, 
§  2808. 
CONTRIBUTION,  joint  debtor  may  require,  when, 
§  1432. 
release  of  joint  debtors  does  not  affect  rights. 

of  others  to.  §  1543. 
to  general-average  loss,  §  2152. 
between    insurers,  in    case    of    over-insurance, 

§  2621. 
between  insurers,  in  case  of  double  insurance, 

§  2642. 
in  case  of  loss  under  marine  insurance,  §  2745. 
between  co-sureties,  §  2848. 
CONTRIBUTORY     NEGLIGENCE.      See    Negli- 
gence. 
CONTROLLER  OF  STATE,  corporation  to  trans- 
mit selection  of  right  of  way  to,  §  478. 
duty  where  property  escheats  to  state,  §  1406. 
CONTROVERSY   between   ship-owners,    how   de- 
termined. §  694. 
CONVERSION,  directed  bv  will,  when  takes  efifecL 
§  1338. 
extinction  of  lien  by.  §  2910. 
of  personal  propertv,    damages  for  wronsrful. 
§§3336,  3338.  " 

CONVEYANCES.       See    Conditions;      Covenants; 
Transfer, 
minor    may    make,    subject    to  disaffirmance, 
§34. 


INDEX.  887 

CONVEYANCES— Continued. 

when  person  of  unsound  mind  may  make,  §  39. 

when  person  of  unsound  mind  cannot  mal^e, 
§  40. 

of    rents    and    reversions,    rights  of    grantee, 
§821. 

grantor  of  trust  may  grant  reversion,  §  864. 

interest  in  grantor  of  express  trust,   §  866. 

deed,  ownership  of  title,  §  994. 

a  transfer  in  writing,  §  1053. 

when  talies  effect,   §  1054. 

date,  §  1055. 

delivery  of,  must  be  absolute,  §  1056. 

subject  to  condition,  and  in  possession  of  third 

person,    §  1057. 

surrendering  or  canceling  does  not  operate  as 
retransfer,  §  1058. 

words  of  inheritance  not  necessarv  to  pass  a 
fee,    §  1072. 

what  title  passes  by,  §  1083. 

by  married  woman  void,  unless  acknowledged, 
Loav,  §  1093. 

fee-simple  title  presumed  to  pass,  §  1105. 

in  fee-simple  carries  with  it  subsequently  ac- 
quired title,  §  1106. 

how  far  conclusive  against  grantor,  §  1107. 

how  far  conclusive  on  purchaser,  §  1107. 

by  owner  for  life  or  years,  §  1108. 

on  condition  subsequent,   §  1109. 

on  condition  precedent,  §  1110. 

valid  without  attornment  of  tenant,  §  1111. 

of  title  to  highway,  §  1112. 

what  covenants  included  in,  §  1113. 

by  married  woman,  §  1187. 

by  heirs  where  will  not  probated,  §  1364. 

defined,  §  1215. 

conveyances  by  persons  whose  names  chang- 
ed, p.  765,  §  1,  Stat. 

priority  between  bona  tide  purchaser  and  judg- 
ment creditor,  §  1214. 

delivery,  necessary,  §  1054. 

date,  presumption  of  time  of,   1055. 

to  grantee  is  necessarily  absolute,  §  1056. 

in  escrow.  §  1057. 

surrendering  or  canceling  grant  does  not  re- 
convey,  §  10.58. 

constructive.  §  1059. 

gratuitous  grants  take  effect  immediatelv;  ex- 
ception, §  1060. 

tax  deeds.    See  Taxes. 
Form,  simple,  §  1092. 


888  INDEX. 

CON  VEYANCE  S— Continued. 

by  married  woman,  §  1093, 
Form— by  attorney  in  fact,  §§  1094,  1095. 
acknowledgment.    See  Acknowledgment, 
recording.    See  Recording, 
recording  of  record  of  conveyances  by  public 

officers,  p.  766,  §  2,  Stat, 
record  of  conveyances  by  persons  whose  names 

changed,  p.  766,  §  3,  Stat. 
Interpretation,  how  made,  §  1066. 
of  limitations.    §  1067. 
by  aid  of  recitals,  §  1068. 
against  grantor,  §  1069. 
of  irreconcilable  provisions,  §  1070. 
of  "heirs,"  "issue,"  etc.,  §  1071. 
CONVICTION  of  felony,  ground  for  divorce,  §  92. 

when  divorce  for,  must  be  commenced,  §  124. 
CO-OPEKATIVE    BUSINESS    CORPORATIONS, 

act  defining,  p.  749,  Stat. 
CO-OPERATIVE  SOCIETIES.     See  Corporations, 

Kinds  of— Religions,  Social,  and  Benevolent, 
not  insurance  companies,  §  451. 
how  formed,  p.  742,  §  1,  Stat, 
rights  and  interests  of  all  members  equal,  p. 

743,  §  2,  Stat, 
liability  of  members,  p.  743,  §  2,  Stat, 
articles  of  association,  p.  745,  §  3,  Stat, 
by-laws,  p.  744,  §  4,  Stat, 
by-laAvs  must  be  recorded,  p.  745,  §  5,  Stat, 
property  is  subject  to  execution,  p.  746,   §  6, 

Stat, 
business  may  be  changed,  p.  746,  §  7,  Stat, 
profits,  how  divided,  p.  746,  §  8,  Stat, 
powers  of  association,  p.  746,  §  9,  Stat, 
associations  may  be  consolidated,  p.  747,  §  10, 

Stat, 
associations    may  be    dissolved,    p.   748,   §  11, 

Stat. 
attorney-general  to  bring  suit,  p.  748,  §  12,  Stat, 
act  to  be  liberally  construed,  p.  749,  §  13,  Stat. 
COPARTNERSHIP.    See  Partnership. 
CORPORATIONS.    See  also  Corporations,  Kinds 

of, 
defined,  §  283. 

what  are  public  and  private,  §  284. 
how  formed,  §  285. 
for  what  purposes  formed,  §  286. 
how  may  continue  their  existence,  §  287. 
certain,  not  affected  by  the  code,  §  288. 
name  of  instrument  creating,  §  289. 


INDEX.  889 

CORPORATIONS— Continued. 

term  of  existence,  §  290. 

wlio  members  and  who  stockliolders,   §  298. 

change  of  principal  place  of  business  of,  §  321. 

to  tile  certified  copy  of  articles  in  county  where 
it  holds  property,  §  209. 

misnomer  not  to  invalidate  instrument,  §  357. 

dealers  with,  cannot  question  existence,  §  358. 

where  proceedings  under  execution  may  be  had 
against,  S  393. 

how  maj  extend  corporate  existence,  §  401. 

examination  of  books  of,  §  587. 

acknowledgment  of  instrument  by,   §  1161. 

requisites  of  such,  §  1185. 

certificate  of  such  acknowledgment,  §  1190. 

other  than  for  profit,  how  formed,  §  593. 

lien  of  servants  where  wages  not  paid,  p.  752, 

§  2,  Stat, 
liens  of  mechanics  and  laborers  on  nonpay- 
ment, p.  750,  §  2,  Stat. 

division  of  property  among  stockholders,  §  309. 

IDaymenc  of  wages  of  mechanics  and  laborers, 
p.   752,    Stat. 

act   allowing   corporations   to   do   business   on 
equal  terms,  p.  827.  Stat. 
Articles  of  incorporation,  defined,   §  289. 

what  to  contain,  §§  290,  291. 

prerequisites  to  filing,  §§  294,  295. 

must  be  subscribed  by  whom,  §  296. 

certificate  to  issue  after  filing,  §  296. 

certified  copy  of,  prima  facie  evidence  of  facts 
therein,  §  297. 

to  be  filed  in  county  where  corporation  holds 
property,  §  299. 

misnomer  in,  does  not  invalidate,  §  367. 

amendment  to  articles  or  certificate  of,  §  362. 

certified  copy  of  certificate    prima  facie  evi- 
dence of  contents,  §  297. 

articles  of  incorporation,  what  to  contain,  §  290. 

certain,  to  state  what  additional  facts  in  arti- 
cles,  §291. 

corporators,    qualifications     and     acknowledg- 
ment by,  §  292. 

prerequisite  to  filing  articles  of  incorporation  of 
certain,  §§  293,  294. 

oath  and  payment  of  subscription,  §  295. 

articles  of  incorporation  of,  where  filed  and  cer- 
tificate, §§  296,  299. 

erroneous  filing  of  articles  of  incorporation,  cor- 
rection of,  §  363. 
Civ.  Code— To 


890  INDEX. 

CORPORATIONS— Continued. 

name  to  be  stated  in  articles  of  incorporation, 
§  290. 

error  of,  in  articles  of  incorporation,  not  to  in- 
validate, §  357. 
Assessment  of  stoclv,  directors  may  levy,  §  331. 

limit  of,  §§332,  333. 

order  for  levying,  §  334.  j 

notice  of,  and  form,  §  335.  ' 

publication  and  service  of  notice,  §  336. 

delinquent  notice,  its  form  and  contents,  §§  337, 
338. 

publication  of  delinquent  notice,  §  339. 

sale  of  stock  to  pay,  §  341. 

not  to  be  invalidated,  §  346. 

action  to  recover    stock    sold    for    delinquent, 
§347. 
By-laws,  adoption  of.  when,  how,  and  by  whom 
made,  §  301. 

may  provide  for  annual  election  of  directors, 
§302. 

may  be  made  for  certain  purposes,  §  303. 

to  be  recorded.  §  304. 

how  amended,  §  304. 

to  be  adopted  at  first  meeting,  §  306. 

by-laws  of  corporations  formed  other  than  for 
profits,  what  may  provide,   §  599. 
Debts,  not  to  be  created    beyond    actual    sub- 
scribed stock,  §  309. 

when  oflicer  becomes  liable  for,  §  316. 

liability  of  stockholder  for,  §  322. 
Dividends,  how  made,  and  how  not  made,  §  309. 

on  shares  of  married  women,  how  paid,  §  325. 
Dissolution,  by  forfeiture  for  non-user,  §  358. 

where  provided  for,  §  399. 

directors  to  be    trustees  for    creditors    upon, 
§400. 
Elections  oC  directors.  §  302. 

how  conducted,  §  307. 

majority  of  stock  to  be  represented,  §  312. 

who  may  vote,  §  313. 

may  be  postponed,  §  314. 

complaints  and  quo  warrantor,  etc.,  regarding, 
§315. 
Examination,  how  and  by  whom  made,  §  382. 

made  by  legislature,  §  383. 
Foreign,  to  designate  person  upon  whom  process 
to  be  served,  §  403;  p.  764,  Stat. 

penalty  for  failure,  §  403. 

deposit  before  doing  business,  §  645. 


INDEX.  891 

CORPORATIOXS— Continued. 

doing  business  before  malting  a  deposit  a  mis- 
demeanor, §  645. 
insurance  companies  doing  business  on  assess- 
ment plan,  requirement  of,  p.  780,  §  6,  Stat. 
Franchise,  levy  upon  and  sale  of,  §  388. 
rights    and    duties   of   purchaser   of,    at   sale, 

§§388,  389. 
corporate  powers  after  sale  of,  §  391. 
redemption,  §  392. 

place  of  sale  of,  under  execution,  §  398. 
renewal  of,  act  relating  to,  p.  817,  §  2,  Stat. 
Meetings,  when  first  to  be  called,  §  301. 
time,  manner,  and  place  to  be  specified  in  by- 
laws. §  303. 
by-laA\  s  only  to  be  amended  at  special,  §  304. 
officers  to  be  removed  only  at  general,  §  310. 
justice  of  peace  may  order,  §  311. 
majority  must  be  present,  §  312. 
who  may  vote,  §  313. 
by  consent  to  be  valid,  §  317. 
proceedings  at,  to  be  binding,  §  318. 
where  held,  §  319. 

special,  how  called  in  certain  cases,  §  320. 
for  extension  and  continuation  of  corporate  ex- 
istence, §  401. 
Officers,  married  women  may  become,  §  285. 
oath  of,  on  filing  articles  of  incorporation,  §  295. 
by-laws  to  regulate  compensation  and  duties, 

§303. 
directors  to  elect  president,  treasurer,  and  sec- 
retary,  §  308. 
proceedings  for  removal  of,  §  310. 
liability  of,  making  false  certificate,  etc.,  §  316. 
proceedings  for  removal  of,  §  587. 
civil  proceedings  by  and  against,  for  removal 

of  officers,   §  587. 
fraud    or  misrepresentation    by  officers  of,  p. 

762,  Stat, 
act  punishing  false  report  by  officer  of.      See 

Penal  Code,  Appendix,  title  Corporations, 
directors,  how  many,  and  qualifications  of,  § 

305. 
directors,  vacancy  in  office,  how  filled,  §  305. 
directors,   election,   how  made,  when,   and  by 

whom,   §  307. 
directors,  organization  of  board,  §  308. 
directors,  must  malce  dividends,  how,  §  309. 
directors,  liability  of,  in  certain  cases  to  credi- 
tors. §  309. 


892  INDEX. 

CORPORATIONS-  Continued. 
Officers— directors,  removal  of,   §  310. 
directors  may  postpone  election,  when,  §  314. 
directors,  boolj  and  notice  of,  by  banks.  §  321. 
directors  may  levy  assessments,   §  331. 
directors   on   dissolution,   to    be    trustees    for 

creditors,  §  400. 
directors,   contracts   to  relieve  directors  from 

liability,  §327. 
directors,  what  actions  against  never  barred, 

§309. 
Organization,  dissolution  for  want  of.  §  360. 

within  what  time  to  be  effected.  §  360. 
Powers,  defined  and  prescribed,  §  354. 
limitation  of,   §  355. 
banking  expressly  prohibited,  §  356. 
when  forfeited  for  non-user,  §  358. 
to  increase  or  diminish  capital  stock,   §  359. 
to  acquire  real  property,  §  360. 
not  affected  by  sale  of  franchise,  §  391. 
of  corporations  not  formed  for  profit,  §  599. 
may  acquire  real  estate.  §§  265,  595. 
cannot  take  by  will.  §  1275. 
may  own  and  improve  lot  and  house  to  carry 

on  business  in,  §  360. 
acquiring  lot  and  building  where  business  car- 
ried on,  §.363;  p.  763,  Stat. 
act  to  prevent  combinations  to  obstruct  sale 

of  livestock,  p.  705,  Stat, 
act  authorizing  corporation  to  act  as  executor, 

p.  754.  Stat. 
Records,  how  kept  and  what  to  contain,  §  377. 

"stock  and  transfer"  book,  §  378. 
Stock,  amount  to  be  subscribed  before  incorpo- 
rating,  §  293. 
oath  of  officer  to  subscription,  §  295. 
capital  stock  of  banking,  §  300. 
majority  of  stibscribed  necessary  to  adoption  of 

by-laws,  §  301. 
two-thirds  of  stibscribed,  necessary  to  amend 

by-laws,   §  304. 
majority  of  subscribed,  necessary  to  election, 

§  307. 
dividends  not  to  be  made  from  capital,  §  309. 
debts  not  to  be  incurred  beyond  subscribed,  § 

309. 
capital  must  not  be  increased  or  diminished 

except,  §§  309,  359. 
on  dissoltitiou,  may  be  divided,  §  309. 


INDEX.  893 

CORPORATIONS— Continued. 
Stock— two-thirds  of  subscribed,  necessary  to  re- 
moval of  officers,   §  310. 
majority    of    subscribed,    constitutes    quorum, 

§312. 
bool^  and  notice  of,  by  banks,  §  321. 
certificates  of,  liow  issued,  §  323. 
transfer  of  shares  of,  §  324. 
transfer  of  shares  of  married  women,  325. 
transfer  of  shares  of  non-residents,  §  326. 
act  imposing  tax  on  issue  of  certificate,  §  326. 
hypothecated  shares,  how  voted,  S  322. 
when  acquires  jurisdiction  over  certain,  §  340. 
sale  of  delinquent,  §  341. 
may  buy  its  own,  when,  §  343. 
disposition  of,  where  corporation  is  purchaser, 

§344. 
action    for    recovery    of,  sold    for    delinquent 

assessments,  §  347. 
capital   stock,    act   prohibiting   dividing,    with- 
drawing, or  reducing,  p.  719,  §  18,  Stat, 
capital   stock,    increasing  or   reducing   of,    pp. 

719,  720,  §§  19,  20,  Stat. 
act   imposing  tax   on   issue  of  certificates   of 
stock  corporations,  p.  833,  Stat. 
Stockholders,  defined,  §  298. 

entitled  to  how  many  votes,  §  301. 
notice  to  be  given  to,  of  meetings,  §  310. 
act  to  protect,  §  321. 
who  has  hypothecated  stock,  §  322. 
llabilitv  of.  for  debts  of  corporation,  §  322. 
CORPORATIONS,  KINDS  OF. 
Agricultural   fair,    may   acquire   and   hold   how 
much  real  estate,  §  620. 
not  to  contract  debts  in  excess  of  amount  on 

hand,  except,   §623. 
not  for  profit,  §  622. 
may  fix  fee,  etc.,  for  membership,  §  622. 
Banking,   capital  stock  of,   §  300. 

publishing  statements,  pp.  716.  717,  Stats. 
Beneficial,  how  formed,  p.  723,   Stat. 
Benev<  lent,  not  insurance  companies.  §451. 
See  Infra,  Religious.  Solcial,  and  Benevolent. 

may  issue  bonds,  §  598. 
Boards  of  trade  may  be  formed,  p.  737,  Stat. 
Bridge,  ferry,  wharf,  chute,  and  pier,  to  obtain 
license  from  board  of  supervisors,  §  528. 
in  what  contingencies  corporate  existence  ceas- 
es, §  529. 


g94  INDEX. 

CORPORATIONS— Continued. 
Bridge,  ferry,  etc.,  annual  report  of,  §  530. 
damages,  for  failure  to  report,  §  530. 
this  title  applies  to  bridge,  etc.,  owned  by  nat- 
ural persons,   §  531. 
Building.    See  Building  and  Loan  Associations. 
Canal.    See  Water  and  Canal. 
Cemetery,  how  much  land  may  be  held,  and  how 
much  disposed  of,  §  608. 
who  members  eligible  to  vote  and  hold  oflace, 

§  609. 
may  hold  what  personal  property,  §  610. 
.such  surplus,  how  disposed  of,  §  610. 
may  issue  bonds  to  pay  for  grounds,  §  611. 
proceeds,  how  disposed  of,  §  611. 
may   talie   and   hold   property   or   use   income 

thereof,  how,  §  612. 
interments  in  lot  and  effect  thereof,  §  613. 
transfer  of  right  made  how,  §  613. 
lotowners   previous   to   purchase   to   be   mem- 
bers, §  614. 
burial  plots,  power  to  dispose  of,    §  598. 
may  sell  land,  §  615. 
manner  of  sale  of  land,  §  615. 
cemetery,   manner  of  execution  of  deeds  by, 

p.  763,   Stat, 
cemetery  corporation,  practice  on  sale  of,  land 

by,  §615. 
cemetery  corporation,  acts  relating  to,  p.  736, 
Stat. 
Chambers  of  commerce  may  be   formed,  p.  737, 

Stat. 
Colleges,   incorporation,   and   power  of  trustees 

of,  §§  649-651. 
Co-operative  business,  defined,  p.  749,  §  1,  Stat. 

formation,  of,  p.  742,  §  1,  p.  749,  §  1,  Stat. 
Children,  act  for  incorporation  of  societies  for 
prevention  of  cruelty  to  children.    See  Penal 
Code,  Appendix,  title  Infancy. 
Docli.    See  Bridge,  etc. 

Educational,  married  women  may  become  cor- 
porators,  §  285. 
corporation  and  powers  of  trustees  of,  §§  649- 
651. 
Ferry.    See  Bridge,  Ferry,  etc. 
Foreign,   to   designate  person  upon   whom  pro- 
cess may  be  served,   §  403. 
Gas,  to  obtain  privilege  from  city  or  town,  §  628. 
to  supply  gas  on  written  application,   §  629. 
damages  for  refusal,  §  629. 


INDEX.  895 

CORPORATIONS— Continued. 
Gas,  when  may  refuse  to  supply,  §  630. 
agent  of  may  inspect  meters,  §  631. 
when  persons  neglect  to  pay,  gas  may  be  shut 
off,  §  632. 
Homestead,   time  of  corporate  existence,   §  557, 
p.  773,  Stat, 
by-laws  to  specify  what,  §  558. 
bV-laws  to  be  furnished  members  on  demand, 

§  558. 
advertisement  and  sale  of  delinquent  shares, 

§  559. 
may   borrow   and   loan   funds,    and   for   what 

time,  §  560. 
minors  and  married  women  may  hold  stock, 

§  561. 
limitation  of  speculation  in  lands,   §  562. 
forfeiture  for  speculation  beyond   certain   ex- 
tent,  §  562. 
when  corporate  existence  terminates,   §  563. 
payment  of  premiums,   §  564. 
annual  report,  §  565. 
publication,  where  made,   §  566. 
extension  of  time  for,  and  how  existence  con- 
tinued, p.  773.   Stat. 
Insurance  in  general,  corporation  may  be  form- 
ed, §  286. 
subscription  to  capital  stock,  §  414. 
purchase  and  conveyance  of  real  estate,  §  415. 
policies,   how   issued    and   by   whom    signed, 

§416. 
dividends,  of  what  and  when  declared,  §  417. 
directors  liable  for  loss  in  certain  cases,  §  418. 
capital  stock,   §419. 

mutual   protective   associations   not,    §  451. 
same.   §  420. 
Insurance,  fire  and  marine,  pavment  of  stibscrip- 
tion,   §  424. 
certificate  of  paid-up  capital  stock  to  be  filed, 

§  425. 
funds  may  be  invested,  how.  §  427. 
fire  and  marine,  propertv  which  mav  be  insured, 
§  426. 
rate  of  risk,  §  428. 

amounts  to   be  reserved   before   making  divi- 
dends. §§429,  430. 
power  to  equip  and  employ  men  as  fire  patrol. 

§  430. 
privileges  of  fire-patrol  corps,  §  430. 


896  INDEX. 

CORPORATIONS— Continued. 
Insurance — costs  and    expenses  of    maintaining 
organization      how  assessed,    §  430. 

dividends,  §§429,  4ol. 

county  fire  insurance  companies,  organization 
and  management  of,  p.  787,  Stat. 

mutual  life,  health,  and  accident,  capital  stock 
may  be  invested,  how,  §  427. 

dividends  of,  companies,  §  429. 

capital  stoclj,  §§419,  437. 

guarantee  fund,  §  437. 

of  what  guarantee  fund  to  consist,  §  438. 

what  constitutes,   §  439. 

deficiency  in  capital  stock,  §  439. 

declaration  of  fixed  capital  to  be  filed,  §  440. 

guarantee  notes  and  interest,  how  disposed  of, 
§441. 

insured  to  be  entitled  to  vote,  §  442. 

may  invest  in  what  securities,  §  443. 

number  of    directors    may  be    altered,   how, 
§444. 

limitation  to  holding  of  stock,  §  445. 

premiums,  how  payable,   §  446. 

to    furnish    insurance    commissioner     certain 
facts,    §447. 

no  stamp  required  on  contract  of  accident  in- 
surance, §  448. 

valuation  of  policies,  §  449. 

policy   to    contain   what   evidence,    §  450. 

payment  and  cancellation,   §  451. 

act  for  incorporation  of  mutual  insurance  com- 
panies, p.  785,   Stat. 

insurance,  annuity  or  endowment,  on  assess- 
ment plan,  p.  777,  Stat. 

insurance,  life  insurance  on  assessment  plan, 
act  relating  to,  p.  777,  Stat. 

insurance,    health     insurance    on     assessment 
plan,  act  relating  to,  p.  777,  Stat. 

insurance,    accident   insurance   on   assessment 
plan,  act  relating  to,  p.  777,  Stat. 

insurance,  title — assets,  title  insurance  compa- 
nies, plant  considered  as  part  of,  §  427. 
Irrigation,  stock  in  as  an  appurtenance,  §  324. 

shares  of  stock  located  on  land,  transfer  of, 
§  324. 

transfer  of  stock  in,   §  324. 
Mechanics'  institute  may  be  formed,  p.  737,  Stat 
Mining,  penalty  for  issuinf  false  prospectus,  p. 
762,  Stat. 


1 


INDEX.  897 

CORPORATIONS— Continued. 
Mining— consolidation  of,   §  361 
removal  of  principal  office  provided  for,  §  584. 
directors  to  file    certificate   of  ^'hat,    where, 

§   585. 
transfer  agencies,  §  586. 
stoclv  issued  at  transfer  agencies,  §  587. 
power  of  directors  to  sell,  lease,  mortgage,  or 

dispose  of  property,  p.  811,  Stat, 
act  providing  for  removal  of  officers,  p.   804 

§1,  Stat, 
act  for  better  protection  of  stockholders  in,  p 

807,  Stat, 
duty  to  lieep  and  post  accounts,  vouchers,  etc., 

and  penalty  for  failure,  p.  8U7,   §  1  et  seq., 

Stat, 
duty  to  keep  books  of  accounts,   p.  807,   §  1 

Stat, 
right  of  stockholders  to  examine  grounds,  p 

809.  §  2,  Stat. 
Mutual,   beneficial,   and   relief,    how   formed,   p 

723,  Stat, 
not  insurance  companies,  §  451. 
Pier.    See  Bridge,  Ferry,   etc. 
Railroad,    articles   of   incorporation    must    state 

what,  §  291. 
prerequisites  to  filing  articles.   §§  294,  295. 
directors  to  be  elected,  when,  §  454. 
additional  provision  in  assessment  and  trans- 
fer of  stock,  §  455. 
may  borrow  money  and  issue  bonds,   §  4.56. 
to  provide  sinking  fund  to  pay  bonds,  §  457. 
capital  stock  to  be  fixed,  §  458. 
certificate  of  pavment  of   fixed    capital  stock, 

§459. 
enumeration  of  powers,  §  465. 
map  and  profile  to  be  filed.  §  466. 
may  change  line  of,  §  467. 
forfeiture  of  franchise,  §  468. 
crossings  and  intersections,  §§  465  n.,  469. 
condemnation,   §  469. 

not  to  use  public  streets,  etc..  except,  §  470. 
not  to  charge  fare  to  and  from  points  in  a  city, 

§471. 
when    crossing    hisrhwavs,    etc..  how    acquires 

right  of  way,  §  472. 
may  consolidate.  §  473. 
proceedings  to  consolidate,   §  473. 
state  lands  granted  for  use  of,  §  474. 


898  INDEX. 

CORPORATIONS— Continued. 
Railroad— such  grant  not  to  embrace  town  lots, 
§475. 
certain  fixtures    may  be    taken    from    realty, 

§476. 
lands  to  revert  to  state,  when,  §  477. 
requisites  on  selection  of  right  of  way,  §  478. 
checli  to  be  affixed  to  all  baggage,  §  479. 
damage  for  refusing  so  to  do,  §  479. 
annual  report  to  be  verified,  §  480. 
form  of  report,  §  480. 
duties  of,  §  481. 
to   pay  damages   for   refusing   transportation, 

§482. 
to    furnish    accommodations    for    passengers, 

§  483. 
to  post  regulations,  §  484. 

not  responsible  for  injuries  incurred  by  violat- 
ing rules,  §  484. 
to  pay  damages,  §  485. 
not  liable  in  certain  cases,  §  485. 
may  recover  damages,  when,  §  485. 
regulations  of  trains,  §  486. 
penalty  for  violating  such,  §  486. 
conductor  may  eject  passengers,  when,  §  487. 
officers  to  wear  badge,  §  488. 
rates  of  charges,  §  489. 
passenger  tickets,  how  issued,  and  good  for  six 

months,  §  490. 
character  of  iron  to  be  used,  §  491. 
freights  and  fares  bill,  p.  822,  Stat, 
commissioners  and  their  duties,  p.  822,  Stat, 
extortion  and  discrimination,  p.  822,  Stat, 
stop-over  tickets,  §  491. 
may  complete  road,  p.  819,  Stat. 
equal  terms  for  all  railway  companies,  p.  820. 

Stat, 
act  compelling  the  operating  of  roads,  p.  821, 

Stat, 
constructed   over   certain   elevation    exempted 
from  running  roads  at  certain  periods,  p.  821, 

Stat. 
street,  may  be  formed,  §  286. 
articles  of  inco^-poration  to  state  what,  §  291. 
prerequisites  to  filing  articles,  §  294. 
authority  to  lay  track,  §  497. 
restrictions  as  to  granting  right  of  way,  §  498. 
two  may  use  same  street,  when,  §  499. 
rate  of  fare,  p.  829,  Stat. 


INDEX.  899 

CORPORATIONS— Continued. 
Railroad— rate  of  speed,  §  501. 

construction    and    requisites    of     conveyances, 
§501. 

must    commence    construction    of    road    when, 
§  502. 

effect  of  failing  to  do  so,  §  502. 

cities  and  towns  may  mal^e  rules  to  govern, 
§503. 

penalty  for  overcharging,  §  504. 

street,  to  provide  and  furnish  passenger  tick- 
ets, §  505. 

penalty,  §  505. 

trial,  proof,  and  limitation,§  506. 

city  or  town  to  preserve  certain  rights,  §  507. 

license  to  be  paid,  §  508. 

tracli  for  grading  purposes,  §  509. 

general  provisions  applicable,   §§  510,  511. 
Relief,  how  formed,  §  601. 

not  insurance  companies,  §  451. 
Religious,  social,  and  benevolent,  man-led  women 
may  become  corporators,  §  285. 

not  insurance  companies,  §  451. 

how  formed,  §  593. 

articles  of  incorporation  to  state  what,  §  594. 

may  hold  what  amount  of  property,  §  595. 

orphan  asylums  may  hold  how  much  property, 
§  595. 

Masons,  Odd  Fellows,  Pioneers,  etc.,  may  hold 
how  much,  §  596. 

annual  report,  §  597. 

mav,  by  order  of  court,  sell  or  mortgage  prop- 
erty,  §  598. 

proceedings  thereon,  §  598. 

may  provide  what  in  by-laws,  §  599. 

members  admitted  after  incorporation,  §  600. 

membership  not  transferable,  §  601. 

religious,  requiring  administration  of  temporal- 
ities, §  602. 

act  relating  to    mutual,  beneficial,  and    relief, 
§  602. 

religious  societies  may  incorporate,   §  603. 

incorporation  of  religious  societies,  §  604. 

articles  of  incorporation,  §  604. 

by-laws  of,  §  604. 

election  of  directors,   §  604. 

powers  of,  §§  602.  604. 

religious  corporations  may  issue  bonds,  §  598. 

burial  plots,  power  to  disp  /se  of,   §  598. 

administration  of  funds,  §  604. 


900  INDEX. 

CORPORATIONS— Continued. 
Religious,  social,  and  benevolent— religious  cor- 
porations, powers  of,  §  602. 

bonds,  religious  societies  may  issue,  §  598. 

incorporation  of,  powers  of  corporation,  §  604. 

cumulative  voting  in,  §  307. 
Road,  articles  of  iu  corporation  must  state  what, 
§  291. 

prerequisites  to  filing  articles,  §  294. 
Savings  and  loan,  booli  and  notice  of  directors 
and  stockholders,  §  321. 

may  loan  money,  on  what  terms,  §  571. 

capital  stocli  and  rights  and  privileges  thereof, 
§572. 

dividends  to  be  from  surplus,  §  573. 

to  contract  no    liability    except    for   deposits, 
§  573. 

property  which  may  be  owned  by,  and  disposal 
of  such,  §  574. 

restrictions  on  purchasers,  §  574. 

married  women  and  minors  may  own  stocli  in, 
§575. 

special  certificates,  §  576. 

may  issue  transferable  certificates  of  deposit, 
§576. 

to  provide  reserve  fund  for  payment  of  losses, 
§577. 

prohibition  on  officer  of,  and  what  vacates  of- 
fice, §  578. 

construction  of  phrase  "create  debts,"  §  579. 
Social.    See  Religious,  Social,  and  Benevolent. 
Stocli-raising,  may  be  formed,  §  286. 
Street  railroads.    See  Railroads,   Street. 
Surety,  incorporations  for  giving  bonds,  p.  725, 
§1,  Stat. 

corporation  formed  to  act  as,  p.  725,  Stat. 

corporation  acting  as,  duty  of  insurance  com- 
missioner, p.  726,  §  3,  Stat. 

corporation  acting  as,  assets  of,  p.  726,  §  3,  Stat. 
Telegraph,  articles  of  incorporation  must  state 

what,  §  291. 

prerequisites  to  filing  articles,  §  294. 

right  of  way  along  water,  roads,  and  highways, 
§536. 

liability  for  injuring  telegraph  property,  §  537. 

liability  for  malicious  injury  to  property,  §  538. 

conditions  on  which  damages  to   subaqueous 
cable  may  be  recovered,  §  539. 

duty  to  send  dispatch,  §  540. 


INDEX.  901 

CORPORATIONS— Continued. 
Telegraph— may  dispose  of  certain  rights,  §  541. 
rates  of    charges  to  be    fixed    and    published, 

§542. 
Wauon-road,  articles  of  incorporation  must  state 

what,  §  291. 
prerequisites  to  filing  articles,  §  294. 
three    commissioners    to    act   with    surveyors, 

§  512. 
survey   and    map   to   be   filed    and    approved, 

§  513. 
tolls,  etc.,  to  be  collected,  §  514. 
penalty  for  taking  unlawful  tolls,  §  514. 
no   toll  to   be   charged   on     public   highways, 

§  515. 
rates  of  toll  to  be  posted  over  gate,  §  516. 
toll  gatherer  may  detain  person  until  toll  paid, 

S   517. 
toll  gatherer  not  to  detain  person  unnecessar- 
ily,  §   518. 
penalty  for  avoiding  tolls,   §  519. 
penalty  for  trespass  on  property  of,  §  520. 
when  capital  repaid,  tolls  to  be  reduced,  §  521. 
may    mortgage    and    hypothecate    property,   § 

522. 
this  title  to  apply  to  roads  owned  by  natural 

persons,  §  523. 
Water  and  canal,  may  obtain  contract  to  supply 

city  or  town,  §  548. 
supervisors  fixing  rates  for  water  supplied  for 

irrigation,  p.  850,   Stat, 
duties,   §  549. 

rates  to  be  fixed  by  commissioners,  §  549. 
right  of  way,  §  550. 

to  build  and  keep  bridges  in  repair,  §  551. 
right  to  water  to  irrigate  lands  sold  by  water 

or  irrigating  company,  §  552. 
act  regulating  sale  and  control  of  water,   p. 
843,  Stat. 
Water  companies.     See  Water  Companies. 
Wharf.     See  Bridge,  Ferry,  etc. 
COSTS  of  action  for  divorce,  §  137. 

of  appraisement  of  homestead,  §  1259. 

of  transportation  of  personal  property  to  place 

of  delivery,  §  1755. 
depositor  must  indemnify  depositary  for  cer- 
tain, §  1833. 
borrower  to  bear  certain,  §  1892. 

Civ.  Code— 76. 


902  INDEX. 

COSTS— Continued. 

hirer  to  bear  certain,   §  1956. 

voluntary  depositary  may  deduct  for  certain, 

§  2078. 

trustee   entitled  to   repayment   for   certain,    § 

2273. 
partner  to  be  indemnified  for  certain,  §  2412. 
insurer  liable  for  certain,  §§  2708,  2743. 
indemnity  against,   §  2778. 

apprenticeship,   payment  of  costs   on   dissolu- 
tion of,  p.  713,  §  17,  Stat, 
liability   of  parties  to  indenture,   p.   710,    §   6, 
Stat.  ' 
CO-SUKETIES.     See  Surety. 
CO-TENA>s'TS.     See  Tenants  in  Common. 
COTERMINOUS  OAVaEKS,  rights  of,  to  lateral 
and  subjacent  support,  §  832. 
rights  of,  to  line  trees,  §  834. 
mutual  obligations,  of,  §  841. 
CO-TKUSTEE.     See  Trusts  and  Trustees. 
COUNTY  CLERK.     See  Clerk. 
COUNTY,  marriage  settlement  to  be  recorded  in 
what,   §   179. 
mortgage  of  personal  property  to  be  recorded 

in   what,    §   2959. 
mortgage  property  in  transit  deemed  located 

in  wliat,   §  29(30. 
property  of  common  carrier  deemed  to  be  in 
what,  §  2961. 
COUNTY  RECORDER.    See  Recorders. 
COURTESY,  estate  by,  abolished,  §  173. 
COURTS,  SUPERIOR,  action  to  atfirm  unsolem- 
nized  marriage,  §  78. 
to  whom  to  aAvard  custody  of  child  of  annul- 
led marriage,  §  85. 
where   divorce    denied,    may   grant   relief    for 

wife,  §§  136,  137. 
may  award  custody  of  child,  §  138. 
may  allow  wife  alimony,  when,  §  139. 
may  require  security  for  alimony,  §  140. 
shall  resort  to  what  property  in  providing  'for 

wife,  §  141. 
when  may  withhold  allowance,   §   142. 
to  determine  legitimacy  of  child,  when,  §  145. 
to  malve  order  for  division  of  property  on  di- 
vorce, §  146. 
may  award  exclusive  control  of  child  to  either 
parent,  on  proper  showing,  §  199. 


INDEX.  903 

COURTS,  SUPERIOR— Continued. 

may  direct  allowance  for  support  of  child,   § 

201. 
appointment  of  guardian  by,  §§  243,  244. 
jurisdiction  of,  appointinii-  guardian,  §  245. 
rules  in  appointing  guardian,   §  24(3. 
guardian  under  direction  of,   §   2r»l. 
consenting  to  apprenticeship  of  child,   §  265. 
judge  of,  may  hear  and  determine  complaints 

of  corporation  elections,   §  315. 
action  in,  to  recover  possession  of  property,  § 

793. 
to    settle   controversy   between   shipowners,    § 

964. 
attornment  of  tenant  to  stranger  by  judgment 

of,  valid,  §  1948. 
when  trustor,  §  2252. 

mav  allow  satisfaction  of  trustee's  adverse 

claim,   §  2263. 
discretionarv  power  of  trustee  controlled  bv, 

§   2269. 
trustee  may  be  discharged  by,  §§  2282,  2283. 
when  may  appoint  trustee.   §  2287. 
when  becomes  trustee,  §  2289. 
mav   reduce   rate     of     interest     on     bottomrv, 

when,   §§  3022-3039. 
COYEXANTS.  none  implied  in  any  arant,  except, 

§  1113. 
when  run  with  land,  §  1460. 
what  run  with  land,  §§  1461-1463. 
what  run  with  land,   when     assigns     named, 

§  1464. 
who  bound  by,  §  1465. 
who  not  bound  by,  §  1466. 
apportionment  of,   §  1467. 
what  required  by  executory  contract  of  sale, 

§  1733. 
for  quiet  possession  implied  in  hiring  of  prop- 
erty, §§  1927,  1955'. 
authority  to  agent  to  sell  and  convey  includes, 

§  2324. 
damages  for  breach  of  certain,  §  3304. 
CREDIT,  sales  by  factor.   §  2028. 

to  agent  exonerates  principal,  when,  §  2335. 
asrent  accepting  personal,   liable  as  principal, 

§  2343. 
auctioneer  not  to  give,  except  when  usual,   § 

2362. 


904  INDEX. 

GREDIT—Continued. 

factor  may  give,  except  when  unusual,  §  2368. 
of  ship-owner,  master  may  borrow  on,  §  2374. 
ship's  manager  cannot  borrow  on,  §  2389. 
CREDITOR.     See  Assignment  for  the  Benefit  of 

Creditors;  Debtor, 
trusts  for  benefit  of,  §  857. 
trust  fund,  how  far  liable  to,  §  859. 
trust,  when  absolute,  in  favor  of  subsequent, 

§  869. 
gift  causa  mortis  treated  as  legacy,  when,   § 

1153. 
transfer  for  benefit  of,  to  be  recorded,  §  1164. 
appraisement    of    homestead    on    petition    of 

judgment,  §  1245. 
when    to    pay    expenses    of    appraisement    of 

homestead,  §  1259. 
competent  witness  to  will,  §  1281. 
acceptance  by,    necessary    to    satisfaction,    § 

1473. 
performance   of  obligation  of  one   of  several 

joint,  §  1475. 
performance  in  manner  directed  by,  §  1476. 
application  of  performance  by,  §  1479. 
offer  of  performance  to,  §  1488. 
offer  of  performance  at  place  appointed    by, 

§  1489. 
offer  of  performance  so  as  to  benefit,  §  1493. 
receipt  by,  §  1499. 

objections  to  offer  of  performance,  §  1501. 
title  of  thing  offered  passes  to,  when,  §  1502. 
obligation  of,  as  to  thing  offered,  §  1505. 
performance  excused  if  prevented  by,  §  1511. 
effect  of  prevention  of  performance  by,  §  1512. 
effect  of  refusal  to  accept  performance,  §  1515. 
acceptance  of  accord,   §  1523. 
acceptance  of  part  performance,  §  1524. 
novation,  how,  §  1531.' 
may  rescind  novation,  when,  §  1534. 
release  by,  §  1541. 
release  by,  effect  of,  §  1542. 
partner  cannot  malvc  assignment   for  benefit 

of,  §  2430. 
liability  of  partner  after  dissolution  to,  §  2453. 
special  partner  may  be,  §  2491. 
special  partner  postponed  to  other,  §  2491. 
preference  to,  in  insolvency,  void,  §  2496. 


INDEX.  905 

CKEDITOR— Continued. 

special,  when  liable     as  general     partner  to, 
§  2502. 

guarantor,  liable  to,  when,  §  2807. 

guarantor,  when  exonerated,  §  2819. 

guarantor   not  exonerated   by   voidable  prom- 
ise of,  §  2820. 

guarantor,  when  partially  exonerated,  §  2822. 

guarantor  not  exonerated  by  mere  delay  of, 
§  2823. 

guarantor  with  indemnity,   when  not  exoner- 
ated, §  2824. 

guarantor   not   exonerated     by     discharge   of 
debtor  without  act  of,  §  282.5. 

surety,  how  far  liable,   §  2838. 

surety  exonerated  by  what  act  or  omission  of, 
§  2840. 

surety  exonerated  by     refusal     to  sue,  when, 
§  2845. 

surety  may  enforce  remedies  of,  when,  §  2845. 

surety  entitled     to  securities     held  by,  when, 
§  2849. 

entitled     to     benefit     of     surety's     securities, 
§  2854. 

must  resort  to  different  funds,  in  what  order, 
§  2899. 

lien  void  against,  when,  §  2913. 

mortgage  of  personal     property,   when     void 
against,  §  2957. 

of  mortgagor,  remedy  of,  §  2968. 

of  mortgagee,  remedy  of,  §  2968. 

contracts  of  debtor  valid  against,  when,  §  3431. 

debtor  may  prefer,  when,  §  3432. 

certain     transfers     of     debtor     void     against, 
§§  34.39.  3440. 

can  avoid  act  of  debtor,  when,  §  3441. 

transfer  without  value,  not  necessarily     void 
against,  §  3442. 

assignment  for  benefit  of,  §  3449. 

failing  to  record  assignment,  §  3465. 

assignment  void  against,  when,  §  34.57. 

may  require  assignee  to  account,  §  3469. 
CRIMINAL  LAW,  misdemeanor,  foreign  corpora- 
tion doing  business  before  malting  a  deposit, 
§  645. 
CRUELTY,  extreme,  ground  for  divorce,  §  92. 

defined,    §   94. 

in  case  husband  or  Avife  leave  on  account  of, 
who  commits  desertion.  §  98. 


906  INDEX. 

CRUELTY— Continued. 

disposition  ot   common  property     in   divorces 
granted  for,  §  147. 

ground  for  annulling  indenture  of  apprentice- 
sliip,  §  276. 
CUSTODY  OF  CHILD.     See  Parent  and  Child. 
CUIiATIYE    ACTS,  act  legalizing    defective    ac- 
knowledgments, p.  703,  et  seq.,  Stat. 

action  to  recover  property  conveyed  by  mar- 
ried woman,  when  barred,  §  164. 

act  validating  record  of  notices  of  location  of 
mining  claims,   §   1159. 

instruments    atfecting   realty   recorded    before 
1897  made  notice,  §  1207. 
DAMAGES.     See     Exemplary     Damages;   Penal 
Damages. 

minors  and  persons  of  unsound  mind  not  liable, 
§  41. 

railroad  corporations  liable  for  certain,  §  485. 

when  owner  of  ship  cannot  sue  for,  for  collis- 
ion, §  971. 

willful  trespasser  liable  for,   §   1033. 

contract  fixing,  void,   §  1670. 

may  be  liquidated,  when,  §  1671. 

depositors  must  indemnify  depositarv  for  cer- 
tain, §  1833. 

liability"  of  depositary,  §  1836. 

liability  of  tinder  of  lost  property,  §  1865. 

liability  of  lender  for  certain,  §  1893. 

indemnity  against,  §  2778. 

for  refusal  to  satisfy  mortgage,  §  2941. 

on  dishonor  of  foreign  bilC  §§  3234,  3237. 

defined,   §  3281. 

may  cover  future  loss,  when,  §  3283. 

interest  by  way  of,   §§  3287-3290. 

exemplary,   §  3294. 

must  be  clearly  ascertainable,  §  3301. 

for  payment  of  money,  §  3302. 

for  breach  of  covenant,  §  3304. 

for  breach  of  agreement  to  convey  real  prop- 
erty, §  3306. 

for  breach  of  agreement  to  purchase  real  prop- 
erty, §  3307. 

for  breach  of  agreement  to  sell  personal  prop- 
erty,   §§  3308,  3309. 

for  brench  of  agreement  to  pay  for  personal 
property,  §  3310. 

for  breach  of  agreement  to  buy  personal  prop- 
erty, §  3311. 


INDEX.  907 

DAMAGES— Continued. 

for  breach  of  warranty     of  title  to  personal 

property,  §  3312. 
for  breach  of  warranty  of  quality  of  personal 

property,  §  3313. 
for  breach  of  carrier  to  accept  freight,  §  3315. 
for  breach  of  carrier  to  deliver  freight,  §  3316. 
for  breach  of  carrier  to   deliver  messages,    § 

2209. 
for  breach  of  warranty  of  agent's  authority, 

§  3318. 
for  breach  of  promise  of  marriage,  §  3319. 
for  wrongs  in  general,  §  3333. 
for  wrongful     occupation     of     real  property, 

§  3334. 
for  holding  over  real  property,  §  3335. 
for  conversion  of  personal  property,  §  3336. 
for  conversion  in  favor  of  lienor,  §  3338. 
for  seduction,    §   3339. 
for  injuries  to  animals,  §  3340. 
for  injury  to  sheep  by  dogs,  §  3341. 
for  tenant's  failure  to  quit  after  notice,  §  3344. 
for  tenant  holding  over,  §  3345. 
for  injuries  to  trees,   S  3346. 
for  injuries  inflicted  in  duel,  §§  3347,  3348. 
value  of  property,  in  favor  of  seller,  §  3358. 
value  of  property  in  favor  of  buyer,  §  3354. 
value  of  property,   peculiar,     when     allowed, 

§  3355. 
value  of  thing  in  action,  §  3356. 
to  be  reasonable,  §  3358. 
nominal,  §  3360. 
for  delay,   must  be  paid  on  redemption  from 

lien,   §   2905. 
dithculty  of  ascertaining,    ground  for  specific 

relief,  §  3380. 
inadequacy   of,    ground   for   specific   relief,    §§ 

3380,  3384. 
DATE,    of    delivery   of    grant,    presumption    of, 

§  1055. 
not  necessary,  in  negotiable  instrument,  §  3091. 
DAUGHTER,  right  of  protection  against  seduc- 
tion of,  §  49. 
DAYS,  what,  holidays,  §§  7,  8. 
what,  business,  §  9. 

what,  counted  in  computing  time,  §  10, 
fractions  of,  when  disregarded,  §  14. 
of  grace,  not  allowed,   §   181. 


908  INDEX. 

DEATH  of  minor,  personal  representatives  may 

disaffirm  contract,  §  35. 
dissolves  marriaft-e,  §  90. 
of  parent,  leaving  child  unprovided,  effect  of, 

§  205. 
of  joint  guardian,  §  252. 
without  heirs,  etc.,  defined,  §  1071. 
gift  in  view  of,  defined,  §  1049. 
gift,  when  presumed  in  view  of,  §  1150. 
gift  in  view  of,  revocation.  §  1151. 
gift  in  view  of,  effect  of  will  upon,  §§  1152. 
gift   in   view   of,    when   treated   as   legacy,    § 

1158. 
of  husband  and  wife,     effect     on  homestead, 

§   1265. 
of  devisee  or  legatee  before  testator,  effect  of. 

§§  1310,  1343. 
of  devisee  before  testator,  §  1344. 
of  heir  advanced  to,  before  devisor,  §  1399. 
distribution  of  common  property  on,  of  wife, 

§  1401. 
distribution  of  common  property  on,   of  hus- 
band,  §   1402. 
of  seamen,  who  entitled  to  wages,  §  2062. 
of  maimer  of  instrument  bearing  nominal  date, 

§  3094. 
notice  of  dishonor  in  ignorance  of,  of  indorser, 

§  3146. 
DEBTOR.      See  Assignment     for  the   Benefit  of 

Creritors;  Creditors;  Debts;  Insolvency, 
performance  must  be  made  by  or  for,  §  1473. 
performance  by  joint,  §  1474. 
effect  of  directions  to,  as  to  performance,  by 

creditors,    §    1476. 
application  of  general  performance  by,  §  1479. 
offer  of  performance  by  or  for,  §  1487. 
may  require  receipt,  §  1499. 
rights  of,  upon  prevention  of  performance,  §§ 

1512-1514. 
novation   by  substituting    new  for    old,   how 

made,  §  1531. 
release  of,  by  creditor,  §  1541. 
release  of,  by  creditor,  effect,  §  1542. 
joint,  release  of  several,  §  1543. 
fraudulent  misrepresentation  of,  as  to  pledge, 

§  2999. 
may  pav  or  secure  one  creditor  in  preference 

1o  another,  §  3432. 


INDEX.  909 

CREDITOR— Continued. 

certain  transfers  void  against  creditors,  §  3431. 

when  creditor  can  avoid  act  of,  §  3441. 

insolvent,  may  assign  for  benefit  of  creditors, 
when,   §  3449. 

insolvent,  defined,  §  3450. 
DEBTS,  earnings  of  wife  not  liable  for,  of  hus- 
band, §  168. 

husband  not  liable  for  antenuptial,  of     wife, 
§  170. 

separate  property   of  wife  not  liable   for,   of 
husband,  §  171. 

separate  property  of  wife  liable  for  her  own, 
§  171. 

corporations  not  to  create,  beyond  actual  sub- 
scribed stock,  §  309. 

when  officer  of  corporation  liable  for,  §  316. 

liability  of  stockholder  for,     of     corporation, 
§  322. 

included  in  word  "incumbrances,"   §  1114. 

homestead  liable  for  certain,  §  1241. 

property  of  intestate,  how  disposed  of  in  pay- 
ment of,  §  1358. 

property  of  testator,  how  disposed  of  in  pay- 
ment of,  §  1359. 

legacies,  how  charged  with,  §§  1360,  1.361. 

liability  of  beneficiaries  for  testator's,  §  1377. 

how  extinguished  by  offer  of  payment,  §  1500. 

accord  of  liquidated,  §  1524. 

agreement  to  answer  for,  of  another,  §  1624. 

partner  may  require  partnership  property  to 
be  applied  to  payment  of,  §§  2405. 

partner  acting  in  liquidation  may  collect,  com- 
promise, etc.,   §  2461. 

liability  of  contribution  of  special  partner  for, 
§  2501. 

special    partner  not    personally    liable,  when. 
§  2501. 

pledgee  cannot  sell  certain  pledged  evidences 
of,  §  3006. 
DECEIT  renders  contract  voidable,  §  1567. 

an  essential  element  of  fraud,  §  1572. 

when  actionable,  §§  1709,  1710. 

upon  the  public,   §  1711. 
DECK,  freight  not  to  be  stowed  on,  §  2117. 

things  stowed  on,  when  entitled  to  general  av- 
eraire,  §  2154. 
DECLARATIONS  of  marriage,  how  made,  §  76. 

of  marriage,  to  be  acknowledged  and  record- 
ed, §  77. 


910  INDEX. 

DECLARATIONS— Continued. 

of  marriage,  action  to  compel,  §  78. 

of  trust,  effect  of  omitting-  in  grant,  §  869. 

of  trust,  act  in  contravention  to,  void,  §  870. 

of  abandonment  of  homestead,  §  1243. 

of  abandonment     of     homestead,     from  what 
time  effectual,  §  1244. 

of  homestead,     how     acknowledged,     §§  1262, 
1266. 

of  homestead,  what  to  contain,  §§1263,  1267. 

of  homestead,  to  be  recorded,  §§  1264,  1268. 

of  homestead,  effect  of     filing     for  record,  §§ 
1265,   1269. 

such  to  be  recorded,  §  1268. 

of  trust,  defined,  §  2253. 

of  trust,  trustee  must  obey,   §  2258. 
DEEDS  as  conveyances.     See  Conveyances. 
DEFAMATION,  right  of  protection  from,  §  43. 

how  effected,  §44. 
DEFAUT/r,  divorce  not  to  be  granted  by,  §  130. 

collision  from  breach  of  rules  implies  willful, 
§  972. 

agreement  to  answer  for,  of  another,  must  be 
in  writing,   §   1624. 
DEFECTS  in  certificate  of  acknowledgment,  ac- 
tion to  remedy,  §  1202. 

in  description  in  will,  effect,  §  1340. 

implied  warranty  of  manufacturer  against  la- 
tent, §  1769. 

depositor  must  indemnify  depositary  for  dam- 
ages arising  out  of,   §  1833. 

lender  must  indemnify  borrower  for  damages 
arising  out  of,  §  1893. 

in  notice  of  loss  under  insurance,  how  waived, 
§  2635. 
DEFINITIONS,  abandonment,  §  27x6. 

acceptance  of  offer,  §  1584. 

acceptance  of  bill,   §  3193. 

accord,  §  1521. 

adult,  §  27. 

adultery,  §  93. 

advancement,    §  ,397. 

agency,  2295. 
actual,  §  2299. 
ostensible,  §  2300. 

agent,  §  2295. 
special,  §  2297. 

agent,  general,  §  2297. 

agreement  for  sale,  §  1726. 
to  sell,  §  1727. 


INDEX.  911 

D  EFINITIONS— Continued, 
agreement  to  buy,  §  1728. 

to  sell  and  buy,  §  1729. 
allonge,  §  3310.  - 
annuity,  §  1357. 
appurtenances,   §  662. 
articles  of  incorporation,  §  289. 
auction,  §  1792. 
autliority,  actual,  §  2316. 

ostensible,  §  2317. 
average,  general,  §  2148. 
bail,  §  2780. 

beneficiary,    §  2218.  z 

bill  of  exchange,  §  3171. 

inland,  §  3224. 

foreign,   §   3224. 
bill  of  lading,  §  2126. 
bottomry,   §  3017. 
building  and  loan  associations,   §  648,  p.  785, 

§  20,  Stat, 
business  days,  §  9. 
carrier,  marine,  §  2085. 
inland,   §  2087. 
common,    §   2168. 
charter-party,  §  1959. 
chattel,  real,  §  765. 

interest,  §  765.  .... 

check,    §   3254. 
collusion,  §  114. 
common  carrier,    §  2168. 
community  property,  §§  164,  687. 
companies,  p.  828,  §  14,  Stat, 
concealment,  §  2561. 
condition  precedent,   §  1346.  '^-''- 

subsequent,   §   1349.     i  s  -^  r 

concurrent,  §  1437. 
conditional  devise  or  legacy,  §  1345. 
obligation,   §  1434. 
condonation,  §  115. 
connivance,  §  112. 
consideration,   good,    §  1605. 
consignee,  §  2110. 
consignor,  §  2110. 
contract,  §  1549. 

executed,  §  1661. 

executory,  §  1661. 

express,  §  1620. 

implied,  §  1621. 
conveyance,    §   1215. 
corporation,    §   283. 


912  INDEX. 

DEFINITIONS— Continued, 
corporation,  public,   §  284. 

private,  §  284. 

articles  of  incorporation,   §  289. 
creditor,  §  3430. 
cruelty,  extreme,  §  94. 
damas:es,   §  3281. 
debtor,  §§  14,  3429. 
deceit,   §  1710. 
declaration  of  trust,  §  2258. 
delivery,  constructive,  §  1059. 
deposit,    §   1813. 

voluntary,  §  1814. 

involuntary,  §   1815. 

for  keeping,  §  1817. 

for  exchange,  §  1818. 

gratuitous,  §  1844. 

for  hire,  §  1851. 
depositary,  §  1814. 
depositor,  §  1814. 
desertion,  §§  95,  96. 
detriment,  §  32s2. 
deviation,  §  2694. 

discrimination,  unjust  ^y  railroad,  §  491. 
dishonor,  §  3141. 
divorce,   §  491. 
dominant  tenement,  §  803. 
drawee,  §  3171. 
drawer,  §  3171. 
duress,  §  1569. 
easements,  §  801. 
employee,  §  1965. 
employer,  §  1965. 
employment,  §  1965. 
escrow,   §  1057. 

estates  in  real  property,  §  761. 
in  fee,  §  762. 

of  freehold,  §  765. 
exchange,   §  1804. 
extortion  by  railroad,  §  491. 
factor,  §§  2026,  2367. 
fixtures,  §  660. 
fraud,   actual,   §  1572. 

constructive,  §  1573. 
freeholds,  §  765. 
freight,  §  2110. 
freightage,  §  2110. 
gift,   §   1146. 

in  view  of  death,  §  1149. 
good-will,  §  992. 


INDEX.  915 


DEFINITIONS— Continued, 
grant,  §  1053. 
guaranty,   §  2787. 

continuing,  §  2814. 
guardian.  §  236. 

general,  §  239. 

special,  §  240. 
head  of  the  family,  §  1261. 
habitual  Intemperance,  §  106. 
hiring.  §  1925. 
holidays,  §  7. 
homestead,   §  1237. 
hydraulic  mining,   §  1425. 
impossibility,  §  1597. 
income,  §  748. 
incumbrances.  §  1114. 
indemnity,  §  2772. 
indorsee  in  due  course,   §  3123. 
indorsement,  §  3108. 

general,   §  3112. 
indorsement,  special,  §  3113. 
indorser,   §  3108. 
insolvency,  §  3450. 
insurable  interest,    §   2546. 
insurance,    §    2527. 

double,  §  2641. 

marine,  §  2655. 
insured,  §  2538. 
insurer,   §  2538. 

intemperance,    habitual,    §  106. 
interest   of   money,    §  1915. 

compound,  §  14. 
interests,  joint,  §  683. 

partnership,  §  684. 

in  common.  §  685, 

present,  §  689. 

future,  §  690. 

perpetual,  §  691. 

limited,  §  692. 

vested,  §  694. 

issue,  $  1071. 

contingent,  §  695. 
iettison,   §  2148. 
land,  §  659. 
lapse  of  time.  §  125. 
legacy,  specific,  §  1357. 

demonstrative,  §  1357. 

residuary,  §  1357. 

general,  §  1357. 

Civ.  Code,  77. 


914  INDEX. 

DEFINITIONS— Continued, 
letter  of  credit.  §  2858. 

special,  §  28(U. 

general,  §  28G1. 
libel,  §45. 
lien,  §  2872. 

general,  §  2874. 

special,  §  2875. 
loan  for  use,  S  1884. 

for  exchange,  §  1902. 

of  money,  §  1912. 
loss,  total,  §2703. 
loss,  partial,  §  2702. 

actual  total,  §  2704. 

constructive  total,  §  2705. 
luggage,  §2181. 
manager  of  ship,  §  2170. 
managing  owner,    §  2170. 
marriage,   §  55. 
master,  §2009. 
mate,  §2048. 

maturity,  apparent,   §  3132. 
menace,  §  1570. 
minor,  §  25. 
mistalvc,  §  1576. 

of  fact,  §  1577. 

of  law,  §  1578. 

of  foreign  law,  §  1579. 
month,  §  14. 
mortgage,    §  2920. 
mutual  consent,  §  1580. 
navigation,  foreign,  §  962. 

domestic,  §  962. 
neglect,  willful,  §  105. 
negotiable  instrument,  §  3087. 
notice,  actual,  §  18. 

constructive,  §  18. 
novation,  §  1530. 
nuisance,  §  3479. 

public,  §  3480. 

private,   §  3481. 
oath,  §  14. 

object  of  contract,  §  1595. 
obligation,   S  1427. 

conditional,  §  1434. 
ownership,  §  654. 

absolute,  §  679. 

qualified,  §  680. 

several,  §  682. 


INDEX.  915 


DEFIXITIONS— Continupd. 

ownership,  joint,  §  683. 

partnership,  §  684. 

in  common,  §  68.5. 
partnership.   §  2395. 

jreneral,  §  2424. 
;  special,  §  2478. 

partnership   property,    §  2401. 

payment,    §  1478. 

perils  of  the  sea,  §  2199. 

person,  §  14. 

personal  property,    §§  14,  663. 

pled^-e,    §  2986. 

pledge-holder,  §  2993. 

policy  of  insurance,  §  2586. 

open,  §  2595. 

valued,  §  2596. 

runninsr,  §  2597. 
possibility,  §  1597. 
preventive  relief,  §  3368. 
principal.    §  2295. 
price.  §  1721. 

privileged  communication,   §  47. 
privileged  publication.  §  47. 
promissory  note.   §  3244. 
property.  §§  14,  654. 

real.  §  14. 

personal.  §§  14,  663. 
recrimination,  §  122. 
reinsurance.  §  2646. 
remainder,  §  769. 
respondentia,   §  3036. 
reversion,  S  768. 
sale,  §  1721. 

sale  by  auction,  §  1792. 
satisfaction,  §  1523. 
seal,  §  14. 
seamen,  §  2049. 
seaworthiness,  §  2682, 
servant.  §  2009. 
servient  tenement,   §  803. 
servitudes,  §  802. 
several.  §  14. 
ship,    §  960. 

appurtenances  of,  §  961. 

domestic,  §963. 

foreign,  §  963. 
ship's  manager,   S  2170. 
signature,  §  14. 


:S!16  INDEX. 

DEFINITIONS— Continued. 

slander,  §46. 

specific  relief,   §3367. 

storage,  §  1851. 

succession,   §  1333. 

surety,  §  2831. 

thing  in  action,  §  953, 

trademarli,  §  991. 

transfer,   §  1039. 

transportation  companies,  p.  828,  §  14,  Stat. 

trust,  §  2215. 
voluntary,  §  2215. 
involuntary,  §  2217. 

trustee,  §  2218. 

trustor,  §2218. 

undue  influence,  §  1575. 

unlawful,  §  1667. 

vessel,  §  17. 

ward,  §  236. 

warranty,   §  1763. 

will,  olographic,  §  1277. 

writing,  §  14. 
DEGREES  of  kindred,  how  established,  §  13S0. 
DELAY,  reasonable  grounds  for,  rebuts  presump- 
tion from  lapse  of  time,  §  126. 

in  performance  compensated  for,  when,  §  1492. 

how  excused,  §  1511. 

carrier  of  persons  to  travel  without  unreason- 
able, §  2104. 

notice  of  loss  under    insurance    to  be  given 
without,  §  2633. 

in  giving  notice  of  loss,  how  waived,  §  2636. 

deemed  deviation,  when,  2694. 

of  creditor    does  not    discharge    guarantor,   § 
2825. 

in  presentment  of  notice  of  dishonor,  how  ex- 
cused, §3158. 

in  presentment  of  bill  of  exchange,  effect,   § 
3189. 

in  presentment  of  bill  of  exchange,  how  ex- 
cused, §  3219. 

in    presentment    of    promissory   note,    effect, 
§  3248. 

in  presentment  of  check,  effect,  §  3255. 

in  protest,  how  excused,  §  3230. 
DELINQUENT  assessment,   sale  of  stock  for,   § 
341. 

assessment,  action  to  recover  stock  sold  for, 
§347. 


INDEX.  917 

DELIVERY  deemed  time  of  creation  of  interest, 

§749. 
of  grant  necessary  to  vest  title,  §  1054. 
presumption  of  time  of,   §  1055. 
to  grantee,  necessarily  absolute,  §  10.56. 
in  escrow.  §  1057. 
constructive,  §  1059. 
of  gift  necessary  to  validity.  §  1147. 
of  contract  in  writing,  provisions  applicable  to, 

§  1626. 
of  goods  sold,  where,  §  1754. 
of  goods  sold,  expense  of,  §  1755. 
of  goods  sold,  notice  of  election  as  to  mode  of, 

§  1756. 
of  goods  sold,  buyer's  directions,  §  1757. 
of  goods  sold,  when  to  be  made,  §  1753. 
thing  bought,  to  be  paid  for  on,  §  1784. 
of  thing  deposited,  on  demand,   §  1822. 
of  thing  deposited,  demand  necessary,   §  1823. 
of  thing  deposited,  where,   §  1824. 
of  thins:  deposited,  bv  joint  owners,  §  1827. 
of  freia-ht,  to  whom.  §  2118. 
of  freight,  where.  §2119. 

of   freight,    to   holder   of   bill   of   lading   suffi- 
cient,   §  2131. 
essential  in  pledge,  §  2988. 
DEMAND,  when  restoration  of  thing  wrongfully 

tal^en  to  be  upon,  §  1713. 
goods  sold  to  be  delivered  upon,  §  1753. 
thing  deposited  to  be  delivered  on,  §  1822. 
thing  deposited  need  not  be  delivered  without, 

§  1823. 
thins:   lent   to   be   returned   without,   when,    § 

1895. 
thing  lent    need  not    be  returned    unless  on, 

when,  §  1895. 
employee,  to  render  account  without,  §  1986. 
employee,  when  not  bound  to  deliver  without, 

§  1987. 
servant  to  deliver  without,  §  2014. 
agent  to  deliver  to  third  person  on,  when,   § 

2344. 
upon  guarantor,  unnecessary,  §  2807. 
of  performance  on  pledgor  must  be  before  sale 

of  pledge,  S  3001. 
of  performance,  hoAV  waived,   §  3004. 
of  payment  of  negotiable  instrument,   when 

necessary,  §3130. 


918  INDEX. 

DEPOSIT.    See      Depositary;     Pledge;     Storage; 

Warehousemen. 
in  savings  baulv  may  be  collected  by  surviving 

husband  or  wife,  when,  §  579. 
of  money  in  payment  of  debt,  §  1500. 
kinds  of,    §  1813. 
voluntary,  §  1814. 
involuntary,  §  1815. 
defined,  §  1817. 
gratuitous,  §  1844. 
gratuitous,  involuntary  is,  §  1845. 
gratuitous,  obligations  of  depositary  on,  §  1846. 
gratuitous,     duties     of     depositary    on,    when 

cease,  §  1847. 
for  reward,  called  storage,  §  1851. 
for  reward,  degree  of  care  required,  §  1852. 
for  rewaLKl,  rate  of  compensation,  §  1853. 
for  reward,  how  terminated,   §§  1854,  1855. 
with  innkeeper,  §§  1859,  1800.   • 
of  thing  found,  §  1804. 
of  thing  for  exchange,  §  1878. 
of  thing  pledged,  by  gratuitous  pledge-holder, 

§  2995. 
sale  of  property  to  satisfy  lien,  §§  1850,  1857. 
lien  of  depositary  for  hire,  §  1850. 
DEPOSITARY,  person  offering  thing  in  perform- 
ance,  §  1503. 
gratuitous,  when  creditor  is,  §  1005. 
seller  of  personal  property,  when,  §  1748. 
defined,  §  1814. 

Avho  bound  to  become,  §  1815. 
duties  in  case  of  involuntary  deposit,  §  1816. 
to  deliver  on  demand,  §  1822. 
not  bound  to  deliver  without  demand,  §  1823. 
to  deliver  where,  §  1824. 
to  give  notice  of  adverse  claim,  §  1825. 
may  exonerate  himself  by  giving  notice,  when, 

§  1826. 
to  deliver  to  joint  owners,  how,  §  1827. 
depositor  must  indemnify,  when,   §  1833. 
of  animals  must  provide  for  them,  §  1834. 
not  to  use  deposit,  §  1835. 
liability  for  wrongful  use,  §  1836. 
may  sell  deposit,  when,   §  1837. 
to  give  information  of  cause  of  loss,  §  1838. 
duties  and  liabilities  in  respect  to  service,    § 

1839. 
liability  for  negligence,  how  limited,  §  1840. 
gratuitous,  must  use  what  care,  §  1846. 


INDEX.  919 

DEPOSITARY— Continued. 

.aratuitoiis.  duties  of.  Avlien  cease,  §  1847. 

for  liire.   defined,   §  1851. 

for  liire,  must  use  ordinary  care,  §  1852. 

for  hire,  rights  of,  §  1853. 

for  hire,  duties,  how  terminated,  §§  1854,  1855. 

innlveeper  as.  liability,   §  1859. 

for  hire,  finder  of  lost  property,  §  1864. 

for  exchange.  §  1878. 

voluntary,   obligations  of,    §  2078. 

has  insuraltle  interest,  §  2548. 

when  pledgee  for  reward,  §  2998. 

act  compelling  all  depositaries  of  money  to 
publish  statement  of  unclaimed  deposits,  p. 
716.  Stat. 

depositary  for  hire,  lien  of,  §  1856. 
DEPUTY  may  take  acknowledgment,  §  1184. 
DESCENTS.    See  Succession. 

DESCPII-TION,  error  of.  in  will,  how  remedied, 
§  1340. 

agreement  to  compensate  for  errors  of,  when 

does  not  prejudice  right  of  rescission,  §  1690. 

DESEPtTIOX,  as  ground  of  divorce.    See  Divorce, 

of  seamen.    See   Seamen. 

of  ship.    See  Shipping. 
DESTKUCTiOX  of  will  is  revocation.  §  1292. 

of  will,  how  proved,  §  1293. 

of  written  contract,  effect,  §§  1699,  1700. 
DETENTION  of  person  or  property  avoids  con- 
tract, when,  §  1569. 

of  property,  damages  for,  §  3335. 
DETRIMENT.    See  Damages. 
DEVIATION,  carrier  must  not  make,  §  2104. 

effect  of,  on  insurance.    See  Insurance. 
DEVISE.    See  Will. 

DILIGENCE,  great,  by  emplovee  for  his  own  ben- 
efit, §  1979. 

ship-master.  §  2043. 

carrier  of  messages  for  reward,  §  2162. 

utmost,   by   carrier  of  persons   for  reward,    § 
2100. 
Ordinary,  by  agent,  §  2020. 

l>y  volimtary  agent,  §  2<j78. 

gratuitous  carrier  of  persons,  §  2095. 

carrier  for  property  for  reward,  §  2114. 

trustee,  §22.59. 
Slight,  by  gratuitous  employee,  §  1975. 

gratuitous  carrier  of  property  must  use,  §  2114. 


920  INDEX.  ^ "      1 

DIRECTIONS  of  buyer  as  to  delivery  of  goods, 

§  1757. 
employee  to  follow,  §  1981. 
factor  to  follow,  §  2030. 
carrier  to  follow  whose,  §§  2115,  2116. 
trustee  must  follow,  §  2258. 
DIRECTORS   of  corporations.    See   Corporations. 
DISAFFIRMANCE,   minor  may  contract  subject 

to,  §34. 
how  affected  by  minor,  §  35. 
when  minor  cannot  exercise,  §§3(5,  37. 
DISCHARGE  of  employee,  §§  1996,  2000. 
of  servant,  §  2015. 
of  trustee,  §§2233,  2282. 
of  trustee,  duties  of,  before  accepting  his,   § 

2260. 
of  trustee,  who  succeeds  after,  §§  2287-2289. 
of    principal  does    not    discharge    guarantor, 

when,  §2825. 
DISTRIBUTION    of   community   property   on   di- 
vorce, §  147. 
order  for,  subject  to  revision  on  appeal,  §  149. 
of  capital  stocli,  on  dissolution  of  corporation, 

§315. 
of  property  of  intestates,  §§  1384,  1386. 
effect  of  advancements  on,  §§  1390-1394. 
DISTRICT   ATTORNEY,   duty  to  prosecute  and 

defend  suits   for  railroad  commissioners,  p. 

824,  §4,  Stat. 
DIVIDENDS.    See  Corporations. 
DIVORCE,  judicial  determination  of  incestuous  or 

void  marriage,  §  80. 
dissolves  marriage,   §  90. 
defined,    §  91. 

for  what  causes  granted,  §  92. 
adultery  as  ground  for,  §  93. 
extreme  cruelty,  §  94. 
willful  desertion,  §  95. 
constructive  desertion,  §  96. 
in  case  of  stratagem  or  fraud,  §  97. 
in  cciae  of  cruelty,  §  98. 
separation  by  consent  not  desertion,  §  99. 
separation    and  intent    not  always  coincident, 

§100. 
refusal  of  reconciliation  after  separation,  §  101. 
refusal  of  condonation,  §  102. 
desertion,  how  cured,  §  102. 
if  wife  refuses  husband's  reasonable  place  of 

residence,  §  103. 


INDEX.  821 

DIVORCE— Continued. 

if  place  unfit,  and  slie  refuses,  liusband  com- 
mits, §  104. 

willful  neglect,  §  105. 

habitual  intemperance,  §  106. 

certain  causes  for,  must  exist  how  long,  §  107. 

when  to  be  denied,  §§  111,  112,  124. 

collusion,  denial  for,   §  111. 

connivance  as  ground  for  denying,  §  112. 

corrupt  consent,  how  manifested,   §  113. 

collusion  as  ground  for  denying,  §  114. 

condonation  as  grotmd  for  denying,  §  115. 

requisites  of  condonation,  §  116. 

implies  condition  subsequent,  §  117. 

evidence  of  condonation,  §  118. 

when  operates  as  bar.  §  119. 

when  made  void,  §  120. 

how  revoked,   §  121. 

recrimination  as  ground  for  denying,   §  122. 

bar  to  recriminators  defense,   §  12.3. 

lapse  of  time  as  ground  for  denying,  §  125. 

presumptions  may  be  rebutted,  §  126. 

limitations  in  action  for,  §  127. 

requisites  as  regards  residence.  §  128. 

presumption  of  domicile,   §  129. 

not  to  be  granted  by  default.  §  130. 

when  denied,  certain  relief  allowed,  §  186. 

expense  of  action  and  alimony,  §  137. 

disposition  of  children,   §  1.38.' 

support  of  wife  and  child,  §  139. 

security  for  maintenance  and  alimony,  §  140. 

what  propertv  resorted  to  for  alimony  and  re- 
lief,   §  141. 

when  relief  not  granted  to  wife,  §  142. 

application  of  property  to  support  of  children, 
§  143. 

legitimacy  of  issue,  §§  144.  145. 

disposition  of  common  property,  §  146. 

disposition  of  common  property  in  case  of  adul- 
tery, S  147. 

appeal  in  action  for,  §  148. 

advertising  to  procure  a  divorce  is  a  misde- 
meanor.   See  Penal  Code,  §  IdQVo- 

divorced  persons  cannot  remarry  within  one 
year,  §  61. 
DOMINANT    TENEMENT.    See    Easements  and 

Servitudes. 
DOUBLE  INSURANCE.    See  Insurance. 
DOUBTFUL  WORDS  in  will,  §  1323. 

in  contract,  §  1654. 


922  INDEX. 

DOWER,  not  allowed.  §  173. 

DRAWER  AND  DRAWEE.  See  Bill  of  Excbause. 

DRUNKENNESS.    See   Intoxication. 

DUEI;.  damasces  for  injuries  inflicted  in,  §§  3347. 

3348. 
DUPLICATE  of  will,  revocation  of,  §  1295. 

alteration  of  copy  of  contract,  §  1701. 
DURESS,  will    or  revocation    procured    through, 
denied  probate,   §  1272. 
defined,  §  1569. 

contract  under,  voidable.   §§  1576,  1689. 
EARNINGS  of  wife  not  liable  for  husband's  debts, 
§168. 
of  wife  living  separate,   separate  property,   § 

169. 
of  minor  children,  §  169. 
of  legitimate  unmarried  minor,   §  197. 
of  illegitimate  unmarried  minor.  §  200. 
EASEMENTS  AND   SERVITUDES,   to  water  to 
irrigate   lands,    sold   by   water   or   irrigating 
company,  §  552. 
what  are  easements,  §  801. 
when  held  apart  from  land,  §  802. 
"dominant  tenement"  defined,  §  803. 
"servient  tenement"  defined,  §  803. 
by  whom  grautable,  §804. 
by  whom  held,  §  805. 
extent,  how  determined,  §  806. 
partition  of,  §  807. 

how  far  usable  by  expectant  owner,  §  808. 
who  may  enforce,  §  809. 

not  to  disqualify  owner  from  recovering  pos- 
session, §  810. 
extinguished,  how,  §  811. 
what  pass  by  transfer  of  property,  §  1104. 
support  to  land,  §  801. 
ELECTIONS,  day  of,  a  hohday,  §  7. 

corporation,  how  conducted,  §  307. 
ELECTRICITY,  act  validating  grant  of  franchise 

to  propel  cars  by,  p.  818.  §  1.  Stat. 
EMPLOYMENT.    See  Liens;    Services;    Wages. 
defined,  §  1965. 
confidential    obligations,     where    regulated,    § 

1992. 
termination  by  death  or  incapacity,  §'1996. 
when  services  to  be  continued  after  notice,  § 

1998. 
termination,  §  1997. 
termination  at  will,  §  1999. 


INDEX.  923 

EMPLOYMENT— Continued. 

termination  by  employer,  for  fault,  §  2000. 

termination  by  employee,  for  fault,  §  2001. 

terminated  for  cause,  employee  not  entitled  to 
compensation,  §  2002. 

right  of  employee  to  compensation  after  ter- 
mination, §  2003. 

service  Tvitbout,  §§  2078,  2079. 

employer,  when  to  indemnify  employee,  §§ 
1969,  1971. 

when  not  to  indemnify  employee,  §  1970. 

cannot  enforce  contract  beyond  two  years,  § 
1980. 

employee  to  obey,  §  1981. 

entitled  to  all  acquired  by  employee  in  course 
of  service,   §  1985. 

entitled  to  account  from  employee,  §  1986. 

preference  given  to  business  of,  §  1988. 

preference  given  to  business  of  several,  in  or- 
der, §  1988. 

employee  liable  for  substitute,  how  far,  §  1989. 

employee  liable  for  negligence,  §  1990. 

employee  entitled  to  indemnitication,  when, 
§§  1969,  1971. 

when  not  entitled  to  indemnification,  §  1970. 

negligence  of  fellow-employee.  §  1970. 

gratuitous  obligations  of,  §§  1975,  1976. 

with  power  of  attorney,  §  1977. 

for  reward,  obligations,  §  1978. 

for  his  own  benefit,  obligations,  §  1979. 

not  bound  for  more  than  two  years,  §  1980. 

to  obey  employer,  §  1981. 

to  serve  according  to  usage,  §  1982. 

to  use  reasonable  skill,  §  1983. 

to  use  whatever  skill  he  has,  §  1984. 

everything  acquired  by  virtue  of  employment 
belongs  to  employer,  §  1985. 

to  give  account,  §  1986. 

not  bound  to  deliver  without  demand,   §  1987. 

to  give  preference  to  employer's  business,  § 
1988. 

to  give  preference  to  several  employers  in  or- 
der, §  1988. 

how  far  liable  for  substitute,  §  1989. 

surviving,  when  to  act,   §  1991. 

discharged  by  notice  of  death  or  incapacity  of 
employer,  §  1996. 

when  to  continue  service  after  employer's 
death,  etc.,  §  1998. 


924  INDEX. 

EMPLOYMENT— Continued. 

entitled  to  compensation  from  employer's  suc- 
cessor, §  1998. 

discharged  for  fault,  §  2000. 

may  quit  service,  when,  §  2001. 

compensation  wtien  dismissed  for  fault,  §  2002. 

compensation  when  quits  for  cause,  §  2003. 
ENCLOSURES.    See  Inclosures. 
ENEMY,  PUBLIC.    See  War. 

performance  prevented  by,  §  1511. 

innkeeper  not  liable  for  damages  caused  by, 
§  1859. 

carrier  not  liable  for  damages   caused  by,   § 
2194. 

cannot  be  insured,  §  2540. 
ESCHEAT,  when  State  takes  property  by,  §§  1406, 

1407. 
ESCROW,  delivery  in,  §  1057. 
ESTATES  in  dower  and  courtesy  abolished,  §  173. 

interests  in  real  property  are,  §  701. 

qualities  of  expectant  §§  699-700. 

in  real  property,  §  761. 

fee  simple,   §  762. 

fees  tail  abolished,  §  763. 

freeholds,  §  765. 

for  years,  §  765. 

at  will,  §  765. 

for  life  of  third  person  is  a  freehold,  §  766. 

future,   §  767. 

in  reversion,  §  768. 

in  remainder,  §  769. 

successive,  for  life,  limitation  on,  §  774. 

successive  for  life,  remainders  on,  §  775. 

creation  of  remainders,  future  and  contingent 
estates,  §  772. 

termination  of,   §  789. 

of  intestates,  succession  to,   §  1384. 

of  intestate,  how  distributed,  §  1386. 
See  Interests;  Real  Property. 
EVIDENCE.    See  Oral  Statements;  Presumption; 
Witnesses. 

of  witness,  privileged,   §  47. 

of  condonation,  §§  118,  119. 

divorce  not  to  be  granted  on  uncorroborated, 
§130. 

record  of  inventory  of  wife's  property,  §  166. 

certified  copy  of  articles  of  incorporation,  §  297. 

handwriting  to  instrument,   §  1199. 


INDEX.  925 

EVIDENCE— Continued. 

certificate  of  ship-master  to  exertions  to  save 

vessel,  §2059. 
certificate  of  chans^e  of  names  in  partnership, 

§  2471. 
of  loss  given  to  insurer,  §  2634. 
EXCHANGE,  when  personal  property  passes  by, 

§  1140. 
vrhen  personal  property  passes  under  executory 

agreement.  §  1141. 
defined,  §1804. 
form  of  contract,  §  1805. 
of  money  implied  warranty,  §  1807. 
deposit  for,   §  1818. 
EXCHANGE— Continued. 

deposit  for,  relation  of  parties  in,  §  1878. 
rights  and  obligations  of  parties,  §  2806. 
hill  of.    !See  Bill  of  Exchange. 
EXECUTED  contract,  voluntary  transfer,  §  1040. 
consideration  or  executory,  §  1609. 
contract,  defined,  §  2661. 
EXECUTION  of  written  instrument,  §  14. 

sale  of  franchise  of  corporations  under,  §  388. 
proceedings  under,  against  corporations,  §  393. 
chattel  interest  not  liable  to  sale  under,  §  765. 
exemption  of  homestead,  §  1240. 
debts  for  which  homestead  liable,  §  1241. 
of  instruments  attectiug  homesteads,   §  1242. 
proceedings  on,  against  homestead,  1245. 
of  homestead  declaration,  §  1266. 
of  codicil,  effect  on  previous  will,  §  1287. 
of  accord,  necessary  to  validity,  §  1522. 
of  contract  in  writing,  effect  of,  §  1625. 
when  principal  bound  by  incomplete,  §  2331. 
Avhen  principal  bound  by,  in  excess,   §  2333. 
EXECUTUliS      AND     ADMINISTKATORS.     See 

Personal  Representatives, 
when  may  bind  to  apprenticeship,  §  267. 
who  entitled  to  letters,  §  1371. 
cannot  have  power  to  appoint  executor,  §  1372. 
not  to  act  till  qualified,  §  1373. 
power  of  to  bind  minor  as  apprentice,  p.  710,  § 

7,  Stat, 
act  authorizing  corporation  to  act  as  executor, 

p.  754,  Stat, 
foreign  executors  or  administrators,   satisfac- 
tion of  mortgages  by,   §  29391/2- 
EXECUTORY,   grant    on  condition    precedent,    § 

1110. 
Civ.  Code,  78. 


926  INDEX. 

EXECUTORY— Continued. 

agreement  transfers  title,  when,   §  1141. 

consideration,   §  1609. 

consideration  need  not  be  stated,  §  1610. 

consideration  ascertained,   how,    §  1611. 

contract  of  marriage  to  be  in  writing,  §  1624. 

contract  defined,  §  1661. 

agreement  for  sale  of  real  property,  §  1731. 

contract,  covenants  when  required  by,   §  1733. 

instrument    in    writing,  implied    warranty  on 
sale,  §  1774. 
EXEMPLARY   DAMAGES,    minors   and   persons 
of  unsound  mind  not  liable,  §  41. 
allowed  when,   §  3294. 
EXEMPTION  of  homesteads  from  forced  sale,  §§ 
1240,  1241. 

of  property  from  operation  of  mortgage,  §  2965. 
EXONERATION   of   innlieeper   from   liability,    § 
1860. 

of  finder  from  liability,  §  1865. 

of  owner  from  claim  of  finder,  §  1871. 

of  lender  from  liability,  §  1892. 

of  ship-master,   on  abandonment,   §  2041. 

of  carrier,  on  delivery  to  holder  of  bill  of  lad- 
ing, §  2131. 

of  partner,  on  renunciation  of  future  profits, 
§  2417. 

of  guarantors,  §  2819. 

of  surety,  §§  2840,  2845. 

of  gratuitous  pledge-holder,  §  2996. 
EXPRESS  contract.    See  Contracts. 

trust.    See  Trusts. 
EXTENSION  of  time  of  delinquent  sale  of  stock. 
§345. 

of  existence  of  corporations,  §§  401,  402. 

of  time  of  performance  of  contract,  §  1698. 
EXTINCTION  of  contracts.    See  Contracts. 

of  liens.    See  Liens. 

of  negotiable  instruments.    See  Negotiable  In- 
struments. 

of  obligations.    See  Obligations. 

of  trusts.    See  Trusts. 
FACTOR  defined,  §  2026. 

duties,  i^  2027. 

may  sell  on  credit,  §§  2028,  2368. 

liability  under  guaranty  commission,   §  2029. 

cannot  relieve  himself  from  liability,  §  2030. 

actual  authority,  §  2368. 

ostensible  authority,   §  2369. 


INDEX.  927 

FACTOR— Continnerl.  

ffiiarantv  need  uot  be  in  writing,  §  2794, 
lien,  §  3001, 
FACTS,   concealment  of  in   certain  cases   malies 
conrlouation  void.  §  120. 
mistake  of,  defined,   §  1577. 
mistake  of  foreign  law  is  mistalve  of,  §  1579, 
actual  fraud  a  question  of.  §  1574. 
fraudulent  intent  a  question  of,  §  3442. 
FALSE.    See  Misrepresentations. 

representation  in  insurance,   §  2579. 
representation  in  insurance,  effect,  §  2580. 
representation  in  marine  insurance,  effect,   §§ 

2676.  2677, 
certificate  by  officer  of  corporation,  §  316. 
FARE.    See  Ticket. 

on  street  railroad,  p.  829,  Stat, 

may  be  demanded  at  any  time,  §  2187. 

passencer  may  be  ejected  for  not  paying,   §§ 

487,  2188. 
when  passenger  required  to  pay  increase  of, 

§  2189. 
ejectment  of  passenger  forfeits  right  to,  §  2190. 
carrier's  lien  for,   §  2191. 
FATHER,  of  what  minor  entitled  to  custody  and 
services,  §  197. 
consent  of.  to  apprentice  child.  §  265. 
FEE  SIMPLE,  defined,  §  762. 

words  of  inheritance  ilnnecessary,  §  1072. 
title  when  presumed  to  pass,  §  1105. 
FEE  TAIL  abolished,  §  763. 
FEES  for  recording  bank  statements,   §  321. 

county  clerk,  fees  in  proceedings  for  removal 
of  officers   of   mining  corporation,   p.  806,    §  5, 

Stat, 
sheriffs,  on    assignment   for    benefit    of    cred- 
itors, §3449. 
commissioners  of  assignees  for  the  benefit  of 
creditors,  §  3471. 
FELONY,  ground  for  divorce,  §  92. 

limitation  of  action  of  divorce  for.   §  124. 
warehouseman,   when  guilty   of.   p.   842,   §  10, 
Stat. 
FEMALES  under  eighteen,  minors,  §  25. 

of  fifteen  mav  marrA^  §  56. 
FEME  COVERT.      See^ Husband  and  Wife;  Mar- 
ried Women, 
FENCES,  riarht  of,  by  coterminous  owner,  an  ease- 
ment, §  801. 


928  INDEX. 

FENCES— Continued. 

tenant  for  life  to  repair,  §  840. 

coterminous  owners,  when  bound  to  maintain. 
§841. 
FERRY   CORPORATIONS.    See  Corporations. 
FICTITIOUS  name  in  partnership  may  be  used, 
§§2466,  2467. 

payee,  §  2103. 
FILING  of  inventory  of  wife's  separate  property, 
§165. 

effect  of  such,  §  166. 

of  articles  of  incorporation,  §  296. 

of  articles  prerequisite,  §§  293,  296. 

of  articles,  duty  of  secretary  of  state,  §  296. 

aflSdavits  of  sale  of  delinquent  stock,  §  348. 
FINDER  not  bound  to  take  charge,  §  1864. 

taking  charge  is  depositary  for  hire,   §  1864. 

notice  to  owner,  §  1865. 

proof  of  ownership.  §  1866. 

compensation,  §  1867. 

may  exonerate  himself  by  storing,  §  1868. 

may  sell  thing  found,  when,  §  1869. 

sale,  how  made,  §  1870. 

owner  may  exonerate  himself  by  surrendering, 
§  1871. 

absolutely  entitled  to  thing  abandoned,  §  1872. 
FIRE,  involuntary  deposit  in  case  of,  §  2815. 

duty  of  depositary,  §  2816. 
FIRE  INSURANCE.    See  Insurance. 
FIRE  PATROL,  equipment  and  employment  of, 
p.  766,  §  1,  Stat. 

privileges  of,  p.  767,  §  2,  Stat. 

cost  and  expenses  of  maintaining,  how  assess- 
ed, p.  768,  Stat. 
FISHING,  right  may  be  held  as  easement,  §801. 

right  may  be  held  as  servitude,  §  802. 
FIXTURES,  real  property,  §  658. 

what  are,   §§  060,  661. 

ownership  of,  §  1013. 

what  may  be  removed  by  tenant,  §  1019, 

mortgage,  a  lien  upon,  §  2926. 
FORCE.    See  Duress. 

in  protecting  person,  property,  and  relatives, 
§50. 

marriage  obtained  through,  voidable,  §  58. 

marriage  obtained  through,  may  be  annulled, 
§82. 
FORECLOSURE  of  redemption  of  mortgagor,  §§ 
2931,  2967. 


INDEX.  929 

FOEECLOSURE— Continued. 

of  redemption,  by  pledgee.  §  3011. 
FOREIGN  bills.    See  Bills  of  Exchange. 

corporations.    See  Corporations. 

law,  mistake  of.  a  mistalve  of  fact,  §  1579. 

navisration  defined,   §  962. 

ship  defined,  §  963. 
FORFEITT^RE  of  powers  of  corporation  for  non- 
user,  §  468. 

of  servitude  for  nonuser,  §  811. 

conveyance  in  excess  of  title  does  not  work,  § 
1108. 

interpretation  of  conditions  involving,  §  1442. 

of  wages  of  seamen.  §  2063. 

contrnet  for,  of  property  subject  to  lien,  void, 
§  2889. 
FORMALITIES  in   execution   of  power  may  be 

disregarded,  §  904. 
FORMS  of  solemnizing  marriage,  no  particular,  § 
71. 

notice  of  assessment,  §  335. 

notice  of  delinquency,  §  337. 

notice  of  tenant  at  will  to  quit,  §  789. 

grant,  simple,  §  1092. 

certificate  of  acknowledgment,  §  1189. 

certificate  of  acknowledgment  bv  corporation, 
§  1190. 

certificate  of  acknowledgment  bv  attornev  in 
fact,   §  1192. 

certificate  of  acknowledgment  by  married  wo- 
man, §  1191. 

covenants  in  execution  of  executory  contract, 
§  1734. 

mortgage  of  realty,  §  2948. 

mortgage  of  personalty,   §  2956. 

warranty  in  police  insurance,  §  3605. 

notice  of  dishonor,  §  3143. 
FRANCHISE.      See   Railroads;    Telegraph;    Tele- 
phone. 

property,  §  3.S8. 

duties   of  purchaser  of,   on   execution,    §§  889, 
390. 

redemption,  §  392. 

place  of  sale  under  execution,    393. 

limitation  of  time  to  grant,  p.  831,  Stat. 
FRAUD,    misrepresentations.    See   Misrepresenta- 
tions. 

marriage  contracted  through,  voidable,   §  58. 


930  INDEX.  "    ■ 

FRAUD— Continnerl. 

in  rontractins:  marria.ire.  ground  for  annulling, 

§82. 
desertion  induced  by,  §  97. 
in   concealment   of   facts,    malies   condonation 

void.  §  120. 
ground  for  annulling  apprenticeship,  §  276. 
in  instrument-,  when  makes  void  against  pur- 
chaser. §  1227. 
where   mutual,    instrument   void    against   pur- 
chaser with  notice,  §  1228. 
in  instrument,  power  to  revoke,  when  deemed 

executed.  §§  1229,  1230. 
in  instrument,   other  provisions  concerning,   § 

1231. 
advantage.    See  Advantage, 
will  procured  through,  void,  §  1272. 
contract   obtained   through,    voidable,    §§  1567, 

1689. 
contract,   when  deemed    obtained    through,    § 

1568. 
actual  or  constructive,   §  1571. 
actual,  defined.  §  1572. 
constructive,  defined,  §  1573. 
actual,  question  of  fact,  §  1574. 
contract  prevented  from  being  put  in  writing 

by.  enforced  when,  §  1623. 
contract  for  exemption  from  liabilitv  of  one's 

own,  void,  §  1668. 
by-bidding,  §  1797. 

thing  gained  by,  held  in  trust,  §  2224. 
agent  cannot  have  authority  to  commit,  §  2306. 
omission  to  communicate  certain  facts  avoids 

insurance,  S§  2562,  2569. 
return  of  premium  in  insurance,  for,  §  2619. 
insurer,  when  liable  for  loss  through,  §  2629. 
in  valuation  under  marine  insurance,  §  2736. 
misrepresentation    by    debtor  as    to  value  of 

pledge,   §  2999. 
exemplary  damages  given  in  case  of,  §  3294. 
interest  as  damages  given  in  case  of,  §  3288. 
instrument,  when  void  against  creditors,  §  3439. 
instrument,  avoided  by  judgment  creditor  only, 

§  3441. 
intent,  question  of  fact,   §  3442. 
undue  inhuence.    See  Undue  Influence. 
FRAUDS,  STATUTE  OF,  Avhat  contracts  to  be, 

in  writing,  §  1624. 


INDEX.  931 

FRAUDS,   statutes  of— Continued. 

sales  of  personalty.  §  1739. 

sales  of  realty.   §  1741. 
FRAUDULENT  'CONVEYANCES,    sale   of   wine, 
in  Avinery,  how  may  be  made.  §  3440. 

voluntary  conveyance  in  contemplation  of  in- 
solvency is  void,  §  3442. 

voluntary  conveyance  by  insolvent  is  fraudu- 
lent.  §3442. 

chansre  of  possession  not  necessary  on  sale  of 
-wine  in  winery,  §  3440. 
^    FREE  PASSP^S.  what    railroad    companies    may 
arrant.   §  491. 
FREEHOLD  defined.  §  765. 

FREIGHT  AND  FREIGHTAGE,  when  wages  of 
seamen  depend  on  freightage.  §  2054. 

when  wacres  of  seamen  do  not  depend  on 
freightaee.  §  2058. 

defined.  §  2110. 

whose  directions  govern  delivery  of,  §  2115. 

carrier  must  not  stow  on  decli."^  §  2117. 

wh^re  to  be  delivered,  §§  2118,  2119. 

notice  of  arrival,  when  necessary,  §  2120. 

stored  by  carrier,  when,  §  2121. 

bill  of  lading,  §  212G. 

carrier,  how  exonerated  from  liabilitv  for,  § 
2131. 

freightaire,  payable  when,  §  2136. 

freightage,  payable  by  whom,  §§  2137,  2138. 

freightage  not  chargeable  on  increase  of 
freight  §  2139. 

freightage,  apportionment  of,  §§  2140-2142. 

when  carried  farther  than  agreed,  §  2143. 

carrier's  lien  for  freightage,  §  2144. 

freightage,  how  valued  on  general  average,  § 
2153. 

liability  of  inland  carriers  for  loss,  §  2194. 

liability  of  marine  carriers  for  losses,  §  2197. 

consignor  of  valuable,  to  declare  its  nature,  § 
220U. 

delivery  beyond  usual  route,  §  2201. 

proof  in  case  of  loss,  §  2202. 

sale  of  perishnble  property  for.  when,  §  2204. 

freightage  liable  for  certain  contracts  of  ship- 
master.  §§  2376,  2380. 

master  of  ship  mav  hvpothecate  freightage, 
§  2377. 

ship's  manager  cannot  give  un  lien  for  freight- 
age, §  2389. 


J32  INDEX, 

FREIGHT  AND  FREK^HTAGE— Continued. 

ship's   manager  may   settle   for   freightage,    § 
2388. 

freiirhtage  in  marine  insurance  signifies  what, 
§  2661. 

who     has    insurable     interest    in    freightage, 
§  2662. 

insurable  interest,  when  exists,   §  2663. 

how  affected  by  abandonment  of  ship,  §  2730. 

when  ship-master  may  hypothecate  under  bot- 
tomry,  §  3021. 

hypothecation    of    freight    by  respondentia,   § 
3038. 

ship-master  has  lien  upon  freightage,  §  3055. 

seaman  has  lien  upon  freightage,  §3056. 

damages  for  carrier's  refusing  to  carry  freight, 
§  3315. 

damages     for     carrier's     refusing     to  deliver 
freight,    §§3316,   3317. 
FREIGHTS  AND   FARES.    See  Fare. 

commissioners,  p.  823,  Stat. 

street  railroad  fares,   §  501. 
FUNDS,  order  of  resorting  to  different,   §  2899. 
FURTHER  ASSURANCE,  executory  contract  of 
sale  binds  seller  to  insert  covenant  of,  §  1733. 
FUTURE,  representation  in  insurance  as  to,  when 
promise,  §  2574. 

warranty  in  insurance  may  relate  to,  §  2606. 

warranty  in  insurance  as  to,  what  deemed,  § 
2608. 
Estates,  what,  §  767. 

rights  of  owners,   §  808. 

vesting   not   prevented   by   power   of   appoint- 
ment, §  781. 
Interest,  defined,  §  690. 

vested  or  contingent,  §  693. 

vested,   §  694. 

contingent,  §  695. 

two  or  more  in  alternative,  §  696. 

not  void  because  improbable,  §  697. 

right  of  posthumous  children  in,  §    698. 

pass,  how,  §  699. 

mere  possibility  not  transferable,   §  700. 

none,  except  those  specified,  §  703. 

suspending  alienation,  void,  §  716. 

when  deleated,  §§  739,  740. 

when  not  deleaied,  §§  741,  742. 

contingent  on   deatli  without   issue,   construc- 
tion,   §  1071. 


INDEX.  933 

P^RETOHT  AND  FRETOHTAGE— Continued. 

interest,  lien  created  on,  §  2883. 
GAIVT-E.  ri^-ht  of  takins:.  as  easement.  §  801. 

rifirht  of  takina:  as  servitude,  §  802. 
GAS.    Pee  Corporations.  Kinds  of— Gas. 
GENDER,  masculine  includes  feminine  and  neu- 
ter.  §  14. 
GENERAL  avpras-e.    See  Average. 

fund.    See  Funds. 
GIFT  defined.  §  114f>. 
made  how.    §  1147. 
•^'hat   not  revocable.    §  1148. 
in  view  of  death,  what.  §  1149. 
in  view  of  death,  when  presumed.  §  1150. 
in  view  of  death,  revocation  of,  §  1151. 
in  view  of  death,  effect  of  will  upon.  §  1152. 
in  view  of  death,  when  treated  as  legacy,   § 

1153. 
to  subscribinsT  witness  to  will,  void  when,   § 

1282. 
subscribing  witness  may  take  as  much  by,  as 

by  succession,  §  1283. 
counties,    cities,  and    towns,    mav  talve  by,   § 

1313. 
certain  words  in  will,  when  words  of.  §  1.335. 
ademption  of  legacy,  when,  §  1.357. 
in  view  of  death,  may  be  satisfied,  §  1.361. 
husband  cannot  make  gift  of  communitv  prop- 
erty, §  172. 
GOOD  FAITH.    See  Bona  Fide  Purchasers, 
offer  of  performance  to  be  in,  §  1493. 
trustee  bound  to  highest,  §  2228. 
partner  bound  to  highest,  §  2411, 
partner  when  not  bound  by  act    in.  §  2431. 
principal  bound  to  persons  acting  in,  §  2334. 
agent  not  bound  by  act  in,  §  2343. 
agent  indemnified  for  advance  made  in,  when, 

§  2.344. 
incumbrance  presumed  acquired  in,  §  2944. 
property,  §§  655,  993. 
defined,  §  992. 
seller  may  agree  not  to  carry  on  same  business 

in  county,  §  1674. 
implied  warranty  in  sale  of,  goodwill,   §  1776. 
GOOD  WILL  is  property,  §§  655,  993. 
defined,    §  992. 

seller  of,  may  agree  not  to  carry  on  same  busi- 
ness in  county,  §  1674. 


9S4  INDEX. 


I 


GOODWILL— Continued 

implied  warranty  in  sale  of.    1776. 

partner  cannot  dispose  of.  §  2430. 
GRACE,  days  of,  not  allowed,  §  3181. 
GRANT.    See  Conveyances. 
GREATER  contains  the  less.    §  536. 
GROWING  CROPS,  subject  to  mortgage,  §§  2955, 
2972. 

See  Crops. 
GUARANTY.    See  Surety. 

liability  of  factor  on  sale  under,  commission, 
§  2029. 

detined,  §  2787. 

knowledge  of  principal  not  necessary,  §  2788. 

consideration,  when  necessary,   §  2792. 

consideration  need  not  be    expressed,  §  2792. 

must  be  in  writing,  §  2793. 

promise  to  answer  for  another,  when  not  deem- 
ed, §2794. 

acceptance  necessary  to  validity,  when,  §  2795. 

interpretation  of  guaranty  of,  incomplete  con- 
tract, §  2799. 

that  obligation  is  good  or  collectible,  §  2800. 

that    obligation  is  good,   not     discharged     by 
harmless  omission  to  sue,  §  2801. 

that  obligation  is  good,  when  brolien  by  prin- 
cipal leaving  state,  §  2802. 

deemed  unconditional,  when,   §  2806. 

enforced  without  demand  or  notice,   when,   § 
2807. 

of  conditional  obligation,  effect,  §2808. 

liability  on,  not  greater  than  principal's,  §  2809. 

where  principal  s  contract  void,   §  2810. 

continuing,  detined,  §  2«14. 

continuing,  revolted  when,  §  2815. 

continuing,   letter   of   credit,   when  deemed,    § 
2864. 

exonerated  by  certain  dealings  with  principal, 
§  2819. 

not  exonerated  by  void  promise,  etc.,  §  2820. 

not  restored  by  rescission  of  agreement  exon- 
erating, §  2821. 

reduced  by  partial  satisfaction  of  principal  ob- 
ligation, §  2822. 

not  exonerated  by  mere  delay,  §  2823. 

not  exonerated  by  release  of  principal,  when, 
§  2824. 


INDEX.  935 

G  UARANTY— Continued. 

not  exonerated  by  legal  discharge  of  principal, 
§  2825. 

surety  exonerated  in  lilie  manner  with  guaran- 
tor, §  2840. 

surety  has  all  rights  of  guarantor,  §  2844. 

iudorser  has  rights  of  guarantor,   §  3121. 
GUARDIAN  AND   WARD,   legal  proceedings  by 
minor  to   be   conducted    through    guardian, 
§42. 

appointment   of,    supersedes   parent,    §  204. 

guardian,  what,  §  236. 

ward  defined,  §  237. 

Ivinds  of  guardian,  §  238. 

general  guardian,   what,   §  239. 

special  guardian,  what,   §  240. 

appointment  of  guardian  by  parent,  §  241. 

uo  person  can  be  guardian  of  estate  without 
appointment,  §  242. 

appointment  of  guardian,   §§  243,  244. 

jurisdiction  of  guardians,  §  245. 

rules  for  appointment  of  general  guardian,   § 
246. 

powers  of  guardians  appointed  by  court,  §  247. 

duties  of  guardian  of  person,  §  248. 

duties  of  guardian  of  estate,  §  249. 

relation  of  guardian  and  ward  confidential,  S 
251. 

death  of  joint  guardian,  §  252. 

removal  of  guardian.  §  253. 

appointed  by  parent,  how  superseded,  §  254. 

appointed  by  court,  how  superseded,   §  255. 

release  by  ward,  §  256. 

discharge  of  guardian,  §  257. 

of  insane  person,   §  258. 

may  consent  to  apprenticeship  of  ward,  when, 
§265. 
GUEST,   innkeeper's   liability   for  personal  prop- 
erty of,  §§  1859,  1860. 
HABITUAL     INTEMPERANCE    ground    for  di- 
vorce,   §  92. 

to  continue  how  long,  §  107. 
HALF-BLOOD  kindred  inherit  equally  with  whole 

blood,  §  1394. 
HANDWRITING,  execution  of  instrument  proved 

by,  when,  §  1198. 
HEAD  OF  A  iWMILY,  husband  is,   §156. 

phrase,  defined,    §  1261. 


936  INDEX. 

HEIRS  of  minor,  when  and  liow  to  disaffirm  con- 
tract, §  35. 

may  dispute  legitimacy  of  issue,  §  195. 

of  tenant  for  life,  when  take  as  purchaser,  § 
779. 

construction  of  word,  §§  1071,  1329. 

inheritance  by.    See  Succession. 
HIGHWAY,  transfer  of  land,  bounded  by,  §  1112. 
HIRING.    See  Loan. 

depositary  for,  when  person  offering  thing  in 
performance  is,   §  1503. 

depositary  for,  when  seller  of  personal  prop- 
erty to  act  as,  §  1748. 

defined,   §1925. 

hirer   entitled   to   product   of   thing   during,    § 
1926. 

covenant   for   quiet  possession   implied   in,    § 
1927. 

hirer  to  use  ordinary  care,   §  1928. 

hirer  to  repair  certain  injuries,  §  1929. 

hirer  may  use  thing  let,  for  what,  §  1930. 

letter  may  terminate,  when,  §  1931. 

hirer  may  terminate,   when,    §  1932. 

when  terminates,    §  1933. 

when  terminates  by  incapacity  or  death  of  par- 
ty, §  1934. 

apportionment  of  hire,  §  1935. 

obligations  of  parties,  §  §  1955-1958. 

of  ships,  §  1959. 
HOLDER  of  negotiable  instrument  may  make  in- 
dorsement special,  how,  §  3114. 

presentment  by,  §  3131. 

to  surrender  on  payment,  when,  §  3137. 

to  give  receipt,  when,  §  3137. 

to  indemnify  payor,  when,   §  3137. 

to  give  proof  of  loss,   when,   §  3137. 

notice  of  dishonor  given  bj',  §  3142. 

notice  of  dishonor  when  to  be  mailed,  §  3148. 

notice  of  dishonor  by  agent,  §  3149. 

what  information  excuses  presentment,  §  3156. 

payment  to,  when  suthcient,  §  3164. 

of  bill  of  exchange  to  treat  it  as  dishonored, 
when,   §3194. 

may  receive  qualified  acceptance  when,  §  3195. 

not  bound  to  receive  acceptance  for  honor,   § 
3204. 

must  receive  payment  for  honor,  §  3204. 

must  give  notice  of  dishonor,  notwithstanding 
acceptance  for  honor,   §  3206. 


1 


INDEX.  937 

HOLDER— Continued. 

for  value,  entitled  to  certain  damages,  §  3234. 
HOLIDAYS,  what  are,  §§7,  8. 

how   computed   in   reference   to   performance, 
§§  10,  11. 
H0MP:STEAD,  defined,  §  1237. 

from  what  property  taken,  §  1238. 

husband  cannot  select  from  separate  property 
of  wife,  §  1239. 

exempt  from  execution,  when,   §  1240. 

debts  from  which  not  exempted.   §  1241. 

conveyance    of  mortgages    of,  how    executed, 
§  1242. 

how  abandoned,  §  1243. 

declarati«/n  of  abandonment,    §  1244. 

proceedings  when  exceeds  exemption,    §  1245. 

application  for  appraisers,   §  1246. 

petition  tiled  with  county  cleric,  §  1247. 

copy  of  petition  served  on  claimant,  §  1248. 

appointment  of  appraisers,  §  1249. 

oath   of   appraisers,    §  1250. 

duty  of  appraisers,  §  1251.  j 

report  of  appraisers,  §  1252. 

proceedings  on  report,  §§  1253-1257. 

fees  of  appraisers,   §  12o8. 

alienation  of,  in  case  of  insanity,  p.  771,  Stat. 

when  title  perfected,  §  12G5. 

tenure  by  which  held,  §  1265. 

of  other  than  head  of  family,  §  1266. 

proceeding   to    obtain    by  other  than    head  of 
family,    §§  1266-12ti9. 

who  may  acquire,  and  of  what  value,  §  1260. 

declaration,    what   to   contain,    §  1263. 

"head  of  the  family"  defined,  §  1261. 

declaration  to  be  recorded,  §  1263. 
HOMESTEAD    COKPUliATlONS.     See   Corpora- 
tions. 
HOTEL-KEEPERS.    See  Innkeepers. 
HUSBAND  AND  WIFE.    See  Married  Women. 

abduction  of  husband  and  wife,  §  49. 

husband  to  select  residence,  §  103. 

wife  to  conform  to  selection  of  home,  or  she 
commits  desertion,   §  103. 

if  unut,  and  wife  refuses  to  conform,  he  com- 
mits desertion,  §  104. 

willful  neglect  to  provide  for  wife,  ground  for 
divorce,  §  105. 

husband  may  be  compelled  to  give  alimony, 
§§  136,  137,  139. 
Civ.   Co(le~7&. 


9S8  INDEX. 

HUSBAND  AND  WIFE— Contiued. 

security  for  alimony,  §  140. 

property  to  be  resorted  to  for  alimony,  §  141. 

when  allowance  may  be  withheld  from  wife, 
§142. 

legitimacy  of  issue  when  divorce  granted  for 
adultery   of  husband,    §  144. 

legitimacy  of  issue,  where  divorce  granted  for 
adultery  of  wife,  §  145. 

mutual  obligations  of,  §  155. 

husband  is  head  of  family,  §  156. 

interest  separate  in  certain  respects,  §  157. 

wife  may  make  contracts,  §  158. 

how  far  may  impair  their  legal  obligations, 
§159. 

mutual  consent  to  separation,  sufficient  con- 
sideration,  §  160. 

may  be  joint  tenants  or  tenants  in  common, 
§161. 

separate  property  of  wife,  §  162. 

wife  may  dispose  of  separate  property  with- 
out consent  of  husband,  §  162. 

separate  property  of  wife,   §  163. 

common  property  of,   §§  164,  687. 

inventory  of  separate  property  of  wife,  §  165. 

effect  of  recording  inventory  of  separate  prop- 
erty of,    §  166. 

wife  may  contract  for  payment  of  money,  §  167. 

not  liable  for  debts  of  husband,  §  168. 

earnings  of  wife  living  separate,  separate 
property,  §  169. 

husband  not  liable  for  debts  of  wife  contract- 
ed before  marriage,   §  170. 

wife  not  liable  for  debts  of  husband,   §  171. 

property  of  wife  liable  for  her  own  debts, 
§  171. 

power  of  husband  over  common  property,  §  172. 

husband  not  allowed  estate  by  courtesy,  §  173. 

wife  not  allowed  estate  in  dower,  §  173. 

husband  liable  for  support  of  wife,  §  174. 

husband  not  liable,  if  wife  abandons,  §  175. 

when  wile  to  support  husband,  §  176. 

property  rights  of  wife,  how  governed,   §  177. 

marriage  settlements  of,  how  executed,  §  178. 

living  separate,  neither  has  superior  right  to 
custody  of  child,  §  198. 

husbana  not  bound  to  support  stepchildren,  § 
2Ul). 


INDEX.  -  939 

HUSBAND  AND  WIFE— Continued. 

consent  of    wife    necessary   for    husband    to 
adopt  child.  §  228. 

surviving  husband  or  wife  may  collect  depos- 
its in  savings  banli,  when,   §  579. 

husband  cannot  select  homestead  from   sepa- 
rate property  of  wife,  §  1239. 

wife  must  join  in  conveyance  of  homestead, 
ij  1242. 

wife  when  head  of  family,   §  1261. 

joint  tenancy  in  homestead,  §  1205. 

consent   of   husband   not   necessary  to   wife's 
will,  §1273. 

inheritance  between,  §  1400. 

distribution  of  common  property  on  death  of 
wife,  §  1401. 

distribution  of  common  property  on  death  of 
husband,    §  1402. 

disposition  of    common    property  on  death  of 
husband,  §  1402. 

contract  obtained  from  wife  by  duress  of  hus- 
band voidable,   §  1569. 

contract  obtained  from  wife  by  menace  void- 
able,  §  1570. 

community'  or  separate  propertj',  presumption 
as  to,   §  164. 

community  property,  gift  of,  power  to  make, 
§172. 

community  property,  conveyance  of,  action  to 
recover  when  barred,    §  164. 

presumption  as  to  property  conveyed  married 
woman  and  others,   §  164. 

separate  property,   presumption  that  property 
conveyed  wife  is,  §  164. 

action  to  recover  property  conveyed  by  mar- 
ried woman,  when  barred,  §  164. 

conveyance  by  married  woman,  limitation  of 
action  by  husband  or  heirs  to  recover,  §  164. 
IDENTIFICATION  of  contracting  parties,  §  1558. 
IDIOTS.    See  Persons  of   Unsound  Mind. 
IDLE  ACTS,  law  does  not  reqtiire,  §  3532. 
IGNORANCE,   mistali:e  of  fact  through,    renders 

contract  voidable,   §§1567,  15 < 7. 
ILLEGITIMACY.    !See   Legitimacy- 

who  may  raise  question  of,  §  195. 

proved,  how,  §  195. 

mother  entitled  to  custodv  of  illegitimate  child, 
§  200. 


940  •  INDEX. 

ILLEGITIMACY— Continued. 

effect  of  subsequent  marriage  of  parents,  §  215. 

consent  of  mother  necessary  to  adoption,  §  224. 

effect  of  adoption,  §  230. 

appointment  of  guardian  for  child.  §  241. 

child,  when  takes  by  succession,   §  1387. 

mother     succeeds    to     property     of    intestate. 
§  1388. 
IMPOSSIBILITY,  condition  void  on  account  of, 
§  1441. 

of  ascertaining  object  of  contract,  §  1596. 

defined.  §  1597. 

of  performance,  when  avoids  contract,  §  1598. 

of  ascertaining  consideration,   §§  1612,   1613. 

law  does  not  require,   §  3531. 
IMPROBABILITY  of  contingency  does  not  ren- 
der future  interest  void,  §  697. 
INCAP.^CITY,   to   contract,    §§39,   40. 

to  consent  ground  for  nullity  of  marriage,  §  82. 

physical  ground  for  annulling  marriage,  §  82. 

terminates  hiring,  §  1934. 

terminates  agency,   §  2355. 
INCEST  defined,  §  59. 

judicial  determination  of  marriage  in  case  of, 
§80. 
INCIDENT  passes  with  principal,   §§   1084,  1656, 

3540. 
INCOME  defined,  §  748. 

disposition  of,  governed  how,   §  722. 

accumulation  of,  allowed  when,  §  724. 

accumulation  of,  directions  for,  void  when,  §§ 
723,  725. 

allowance  out  of,  §  726. 

undisposed  of,  Avho  entitled  to,  §  733. 
INCOKPOKATION.    See  Corporations. 
INCREASE.    See  Accession. 

of  property  belongs  to  owner,  §  732. 

of  property  lent  belongs  to  lender,  §  1885. 

of  property  hired  belongs  to  hirer,  §  1926. 

freightage  not  charged  for  natural,  of  freight, 
§  2139. 

of  property  pledged,  is  pledged,  §  2989. 
INCUMBRANCER,   resulting  trust  not  to  preju- 
dice, §856. 

grant,  how  far  conclusive  as  to,  §  1107. 

incumbrance  defined,  §  1114. 

instruments,  when  void  against,  §  1227. 

instruments,  when  not  void  against,  §  1228. 


INDEX.  941 

INCUMBRANCER— Continued. 

grant  as  revocation  in  favor  of,  when,  §  1229. 

Incumbrance     imposed  on     devised     property, 
§  1302. 

rights   of.   under   devisee,    when   not  impaired 
by  his  conveyance.  §  1.364. 

vrhen    personal    mortgage  void  against  subse- 
quent. §  3048. 

lien  of  seller  or  buyer  not  valid  against  subse- 
quent. §  2957. 

covenant  against    all,  damages  for    breach,  § 
8305. 

obligation  respecting  real  property  not  enforced 
against  subsequent,  §  3395. 

certain  transfers  void  against,  §  .3440. 
INDEMNITY  by  depositor,  §  1833. 

when  eraplovee  entitled  to,  §§  1969,  1971. 

to  trustee,  §  2273. 

to  partner,  §  2412. 

measure  of,  under  marine  insurance.  §  2736. 

measure  of,  under  tire  insurance,  §  2756. 

measure  of,   under  life  and  health   insurance 
§  2766. 

insurance  a  contract  of,  §  2551. 

defined,  §  2772. 

for  future  wrongful  act,  void,  §  2773. 

for  past  wrongful  act,  valid,  §  2774. 

extends  to  acts  of  agent,  §  2775. 

to  several  applies  to  each,  §  2776. 

joint  liability  with  person  indemnified,  when, 
§  2777. 

interpretation,    §  2778. 

when  person  giving,  has  right  of  surety,  §  2779. 

in  legal  proceedings,  §  2780. 

in  leual  proceedings,  by  what  rules  governed, 
§  2781. 

guarantor   indemnified    liable    to    extent    of, 
§  2824. 
INDENT lKES  of  apprenticeship,  §§270-272. 

deposit  of  such,    §  273. 

causes  for  annulling,  §  276. 

of  apprentices.    See  Apprenticeship. 
INDORfc.EMENT,  marriage  certificate,  §  73. 

indentures  of  apprenticeship,  §§  266,  375. 

necessary-  to  transfer  shares  of  stoclv,  §  324. 

of  surveyor-general,  on  plat  of  right  of  way, 
§478. 

non-negotiable  contract  transferred  by,  §  1449. 

of  bill  of  lading,  ettect  of,  §  2271. 


842  INDEX. 

INDORSEMENT— Continued. 

of  check,  rig-hts  of  indorsee,   §  3255. 
Of  negotiable  instilment  defined,  §  3108. 
how  made,    §3109. 
on  separate  paper,  when,   §  3110. 
general,  defined,  §  3112. 
special,  defined,  §  3113. 
general,  how  made  special,  §  3114. 
special,  how  may  destroy  negotiability,  §  3115. 
implied  warranty  of,  §  3116. 
before  delivery  to  payee,  §  3117. 
without  recourse,  S§  3118,  3119. 
gives  privity  to  contract,  §  3120. 
for   accommodation,   rights   of   party   making, 

§  3122. 
without  consideration  binding,  when,  §  3123. 
in  due  course  defined,  §  312-1. 
in  due  course,  rights  conferred  by,  §  3125. 
in  due  course,  of  instrument  in  blank,  §  3126. 
rights  of  indorsee,    §  3129. 
notice  of  dishonor,  how  served  after  death  of 

iudorser,  §  3145. 
of  bill  of  exchange,  when  indorser  exonerated 
by  delay  of  presentment,  §  3189. 
INFANT.    See  Minors. 

en  ventre  sa  mere,  rights  of,  §  29. 
INLUENCE,  UNDUE.    See  Undue  Influence. 
INFORMATION,  to  be  given  on  insurance,  §  2563. 
to  be  given  on  marine  insurance,  §§  2609,  2670. 
what  need  not  be  given  on  insurance,  §  2570. 
waiver  of  rights  to,  on  insurance,  §  2568. 
fraudulent  omission  to  communicate  on  insur- 
ance, §  2569. 
in  insurance  by  one  without,  §  2578. 
INHERITANCE,  words  of,  not  necessary  to  pass 
fee,   §  1072. 
from  decedents.    See  Succession. 
INJUNCTIONS,  preventive  relief  by,  §  3420. 
provisions  concerning,  §  3421. 
when  allowed,  §  3422. 
when  not  allowed,    §  3423. 
INJURIES,  right  of  protection  from,  §  43. 

right  to  defend  person  and  property  from,   § 

50. 
by  tenant  for  life  to  real  property,  §  818. 
who  may  sue  for,  to  real  property,  §  826. 
threat  of,   renders   contract  voidable,    §§  1569, 
1570. 


INDEX.  943 

INJURIES— Continued. 

contract  for  exemption  from  liability  for,  void, 
§  1G68. 

obligation  to  abstain  from,  §  1708. 

liability  for,  by  neglect.  §§  1714,  1838. 

innkeeper,  when  not  liable  for,  to  guest's  prop- 
erty, §  1860. 

borrower,  when  to  repair,  §  1889. 

hirer,  when  to  repair,  §  1929. 

to  ship,  liabilities  of  seamen  for,  §  2063. 

liabilities  of  inland  carrier  for,  §  2194. 

liabilities  of  marine  carrier  for,  §  2197. 
INNKEEPERS.    See  Lodging-houses. 

liability  as  depositary,  §  1859. 

exempted  from  liability,  how,  §  1860. 

lien  of.  on  baggage.  §1861. 

sale   of   unclaimed   baggage   for  storage,    etc., 
§  1862. 

posting  of  statement  of  charges,  etc.,  §  1868. 

liability  of  hotel-keeper,  limitation  of,  §§  1859, 
1860. 

liability   of   innkeeper,    limitation   of,    §§  1859, 
1860. 
INSAMTY.    See  Persons  of  Unsound  Mind. 

children  of  marriages  annulled  for,   §  84. 

alienation  of  homestead,   in  cases  of,   p.  771, 
Stat. 
INSOLVENCY  defined,  §3450. 

of  special  partnership,   §  2491. 

of    special     partnership,    preferential    assign- 
ments  forbidden,    §  2496. 

of  principal  in  guaranty,  §  2802. 

of  consignee,  §  8077. 

consignor  may  stop  goods  in  transit  on,  of  con- 
signee,  §  8080. 

See  Code  of  Civil  Proceedure,  Appendix,  title 
Insolvency. 
INSPECTION     of    things    sold    with     warranty, 

§  1785. 
INSTRUMENTS,  containing  •condition  wrong  per 
se,  void,  §  709. 

affecting  title  to  real  property,  ownership  of, 
§994. 

by  married  women,  acknowledged,  how,  §  1093. 

by  attorney  in  fact,  executed,  how,  §  1094. 

evidencing  title   declared   by    judgment,   how 
proved  by  record,  §  1159. 

what  not  to  be   recorded,    §  1161. 

proved  by  other  than  subscribing  witness,  how 
recorded,   §  1162. 


944  INDEX. 

INSTRUMENTS— Continued. 

execution  of,  proof  of,  bow  made,  §§  1185,  1198. 

subsequent  recording  of  prior,  void  as  to  sub- 
sequent, §  1203. 

unrecorded,  valid  as  between  parties  with  no- 
tice, §  1217. 

certain    non-negotiable    written,     transferable, 
§  1459. 

in  writing  prima  facie  import  consideration, 
§  1614. 

burden  of  proof,  showing  want  of  considera- 
tion, §  1G15. 

distinction  between  sealed  and  unsealed  abol- 
ished, §  1G29. 
Fraudulent,  when    void    against    purchasers,    § 
1227, 

when  not  void  against  purchasers,  §  1228. 

power  to  revolve,  when  executed,  §§  1229,  1230. 

provisions  concerning,  §  1231. 

void  against  creditors,  when,  §  3439. 

valid  in  favor  of  purchaser,  when,  §  3441. 

a^  oided  by  judgment  creditor  only,  3442. 
Unrecorded,  valid  as  between  parties  and  privies, 
§  1217. 
INSULT,  right  of  protection  from,  §  43. 
INSURANCE.       See     Contribution;     Loss;     Sea- 
worthiness. 

iusuiance  corporations.    See  Insurance — Kinds 
of. 

special  partnership  cannot  carry  on,  §  2477. 

defined,  §  2527. 

what  subject  to,  §  2531. 

lottery  or  lottery  prize  not  subject  to,  §  2532. 

usual  liiuds,  §  2533. 

parties  defined,  §    2538. 

parties  who  may  be,  §§  2539,  2540. 

by  mortgagor  in  favor  of  mortgagee,  §  2541. 

transfer  of,  to  mortgagee,  §  2542. 

in  general  defined,  §  2o4(j. 

may  consist  in  what,  §  2547. 

by  carrier  or  depositary,  §  2548. 

mere  contingency  or  expectancy  not  subject  of, 
§  2549. 

measure  of  interest,   §  2550. 

Void  if  insured  has  no  interest,  §  2551. 

when  interest  must  exist,  §    2552. 

change  of  interest  suspends,  §  2553. 

after  loss  does  not  suspend,   §  2554. 


INDEX.  945 

INSURANCE— Continued. 

in  thinsc  separately  insured  does  not  suspend, 

§  2555. 
by  succession  does  not  avoid,   §  2556. 
from    one    ioiut    owner    to    another    does    not 

avoid.  §  2557. 
gamin?  and  wasrerins:  policies,  §  2558. 
concealments  in.  defined,  §  2561. 
ground  for  rescission,   §  2562. 
vrhat  must  be  communicated  in.  §  2563. 
what  need  not  be.  2564. 
what  deemed  material,  §  2565. 
what  parties  bound  to  know,  §  2566. 
right  to  information  in.  how  waived.   §  2567. 
wliat  information  not  necessary,  §  2568. 
fraudulent     concealment     of   facts  concerning 

warranty,  avoids.  §  2569. 
parties  not  bound  to  state  matters  of  opinion, 

§  2570. 
representation,  oral  or  written.  §  2571. 
representation,   when   made.   §  2527. 
how  interpreted,  §  2573. 
when  deemed  promise.  §  2574. 
how  affects  policy,   §  2575. 
may  be  withdrawn,  when,  §  2576. 
refers  to  what  time,  §  2577. 
upon  belief.    §  2578. 
when  deemed  false,   §  2579. 
false,  ,2Tound  for  rescission,  §  2580. 
materiality  how  determined,  §  2581. 
policy  of.  when  void,  §  2558. 
policy  of,  riaht  to  rescind,   §  2583. 
policy  of,  defined,  §  2586. 
must  specify  what,  §  2587. 
whose  interest  covered  by,  §  2588. 
in  favor  of  agent,  §  2589. 
in  favor  of  partner,  §  2590. 
general  description  in,  to  whom  applicable,   § 

2591. 
for  benefit  of  successive  owners,  §  2592. 
not  transferred  by  transfer  of  thing  insured, 

§  2593. 
policy  of,  open,  defined,  §  2595. 
valued,  defined,  §  2596. 
running,  defined,   §  2597. 
efiect  of  receipt  in,  §  2598. 
agreement  not  to  transfer  claim  under,  void, 

§  2599. 
warranty  in,  defined,  §  2603. 


946  INDEX. 

INSURANCE-Contin-aed. 

form  of  warranty  in,   §  2604. 

policy  may  provide  for  avoidance,  §  2611. 

express  warranty  must  be  in  policy,  §  2G05. 

warranty  may  relate  to  past,  present,  or  fu- 
ture, §  2606. 

express  warranty,  defined,  §  2607. 

as  to  future,  defined,  §  2608. 

performance  of,  wtien  excused,  §  2609. 

breach  of  material  warranty  ground  for  recis- 
sion,  §  2610. 

breacli  of  immaterial  warranty  does  not  avoid, 
§  2611. 

breach   of  warranty   without  fraud,    effect,    § 
2612. 

premium,  how  payable,  §  446. 

premium,  rate  of,  must  be  specified  in  policy, 
§  2r387. 

premium,  effect  of  receipt  of  policy,  §  2598. 

premium,  when  earned,  §  2616. 

return  of,  when  due,  §  2617. 

fire  patrol.    See  Fire  Patrol. 

foreign  companies  doing  business  on    assess- 
ment plan,  requirements  of,  p.  780,  §  6,  Stat. 

when  none  allowed,  §  2618. 

return  of,  when  not  due,  §  2619. 

in  case  of  over-insurance,  §  2620. 

contribution  to,  §§  2621,  2622. 

perils  insured  against,  what  may  be,  §  2531. 

perils,  what  covered,  §  2626. 

perils,  loss  incurred  by  rescue  from,  covered  by, 
§  2627. 

perils  excepted,  §  2628. 

caused  by  fraud,  when  not  covered,  §  2629. 

notice  of  loss,  §  2633. 

proof  of  loss  under,  §  2634. 

notice  of  defects  or  delay,  how  waived,  §  2635. 

proof  of  defects  or  delay  in  notice  of  loss,  how 
waived,  §  2636. 

proof  of  loss  by  certificate,   when  excused,  § 
2637. 

double,  defined,  §  2641. 

contribution  under,  {j  2642. 

reinsurance,  defined,  §  2646. 

what  must  be  communicated  on,  §  2647. 

presumed  to  be  against  liability,  §  2648. 

original  insurer  has  no  interest  in,  §  2649. 
Fire,  enect  of  alteration  in  thing,  §§  2753,  2754. 

how  affected  by  acts  of  insured,  §  2755. 


INDEX.  947 

INSURANCE- Contnued. 

Fire,  measure  of  indemnity,  §  2756. 

investments  of,  §  427. 

report  of  investments,  §  42. 

county  lire  insurance  companies,  organization 
and  management  of,  p.  787,  Stat. 
Life  and  liealtb,  valuation  of  policies,  §  449. 

policy,  what  evidence  to  contain,  §  450. 

payment  and  cancellation  of  policy,  §  4.51. 

cajDital  stock  of  mutual  insurance  company,  p. 
785,  §  8,  Stat. 

when  payable,  §  2762. 

who  insured  by,f§  2763. 

may  be  transferred,  etc.,  to  person  having  no 
interest,  §  2764. 

notice  of  transfer  not  necessary,  §  2765. 

measure  of  indemnity,  §  2766. 

return  of  guarantee  notes,  p.    786,  §  9,  Stat. 
•  does  not  pass  to  assignee  for  benefit  of  credit- 
ors, §  3470. 

valuation  of  policies,  §  447. 

health,  on  assessment  plan,  act  relating  to,  p. 
777,  Stat. 

annuity  or  endowment,  on  assessment  plan,  act 
relating  to,    p.  777,  Stat. 

life,  on  assessment  plan,  act  relating  to,  p.  777, 
Stat. 
Marine,  insurer  not  liable  for  damages  by  perils 
of  the  sea,  §  2197. 

perils  of  the  sea  defined,  §  2199. 

defined,  §  2655. 

insurable  interest  under,  §  2659. 

owner  of  ship  has  insurable  interest,  §  2660. 

insurable  freightage,  §  2661. 

expected  freightage,  when  insurable,  §  2662. 

insurable  interest  under  charter-party,  §  2663. 

insurable  interest    in  profits,   §  2664. 

of  charter  of  ship,  §  2665. 

ship's  manager  cannot  bind  owners  to,  §  2389. 

what  must  be  communicated,  §  2669. 

what  information  material,  §  2670. 

when  persons  insured  presumed  to  have  infor- 
mation, §  2671. 

effect  of  concealments  upon,  §  2672. 

representation  willfully  false,  avoids,  §  2676. 

eventually  false,  does  not  avoid,  §  2677. 

warranty  of  seawortliiness  implied,  §  2681. 

meaning  of  "seaworthy,"  §S  2682,  2684. 


948  INDEX. 

INSURANCE— Continued. 

warranty    of    setworthiness,    when     complied 

witb,  §2083. 
warranty  of  seaworthiness,  effect  of,  §  2684. 
different   degrees    of    seaworthiness,    §§  2685, 

2686. 
warranty  of  neutrality,  §  2688. 
voyase  covered  by,   how  determined,  §§  2692, 

2693. 
deviation  defined,  §  2694. 
deviation,  when  proper,  §  2695. 
deviation,  when  improper,  §  2696. 
deviation,  effect  of,  §  2697. 
loss  under,  total  or  partial,  §§  2701,  2702. 
actual  or  constructive  loss,  §  2703. 
actual  total  loss,  §  2704. 
constructive  total  loss,  §  2705. 
actual  loss,  when  presumed,  §  2706. 
on  cargo,  when  voyage  brol^eu  up,  §  2707. 
covers  expenses  of  reshipment,  when,  §  2708. 
abandonment    unnecessary    upon   actual   total 

loss,  §  2709. 
free  of  average,  effect  of,  §  2711. 
against  total  loss  only,  effect  of,  §  2712. 
abandonment,  §  2716. 
insured  may  abandon,  when,  §  2717. 
thing  insured  belongs  to  insurer,  when,  §§  2724, 

2725. 
agents  of  insured  are  agents   of   insurer   after 

abandonment,  §  2726. 
abandonment  not  necessary,  §  2727. 
abandonment,  effect  of,  §  2728. 
abandonment,  irrevocable,  §  2729. 
abandonment,  eft'ect    of    insurer's    refusing,  § 

2731. 
insured  not  obliged  to  abandon,  §  2732. 
valuation  in  policy,  when  conclusive,  §  2736. 
valuation  in  policy,  when  applicable  to  partial 

loss,  §  2737. 
insured    may    recover    proportion    of    profits, 

when,  §  2738. 
valuation  in  policy,  apportioned,  §  2739. 
valuation  in  policy,  of  profits,  §  2740. 
measure    of    indemnity    under    open    policy, 

§  2741. 
in  case  of  damage,  §  2742. 
where  expenses  incurred,  §  2743. 
for  general  average,  §  2744. 
where  insured  entitled  to  contribution,  §  2745. 


INDEX.  94» 

INSURANCE— Continued. 

in  case  of  partial  loss  of  ship,  etc.,  §  2746. 

investments  of.  §  427. 

report  of  investments,  §  427. 
Accident. 

act  for  incorporation  of  mutual  insurance  com- 
panies, p.  785,  Stat. 

an  assessment  plan,    act  relatins:    to,  p.  777, 
Stat. 
Title. 

accumulating  surplus  fund,  §  432. 

dividends,  §§  420.  430. 

plant  of  company  considered  as  part  of  assets, 
§  427. 
INSURANCE    COMMISSIONER,  corporation  act- 
insi:  as  surety,  duty  of  insurance  commission- 
er, p.  726,  §  3,  Stat. 

duties  as  toward  county  insurance  companies, 
p.  787,  Stat. 

duty  of,  and  rights  as  towards  insurance  com- 
panies on  assessment  plan,  pp.  783,  784,  §§  10, 
13,  Stat. 
INSURANCE  CORPORATIONS.  See  Corpora- 
tions. 
INTEMPERANCE,  habitual,  ground  for  divorce,  § 
92. 

as  ground  for  divorce,  to  exist,  how  long,  §  107. 
INTENTION  to  desert,  not  always  coexistent  with 
separation,  §  100. 

of  grantor  in  ambiguous  grant,  §  1069. 

of  testator,  §§  1317,  1370. 

of  testator,  huw  ascertained,  §  1318. 

overrules  grammatical  construction,  §  1324. 

overrules  technical  meaning,  §  1327. 

substantial  compliance  with,  sulhcient,  §  1348. 

to  make  ademption,  must  be  in  writing,  §  1351. 

to  extinguish  old  obligation,  necessary  in  no- 
vation, §  1531. 

presumed,  when,  §  1533. 

to   deceive,   an  essential  element  of  fraud,    § 
1572. 

to  govern  interpretation  of  contract,  §  1636. 

how  ascertained,  §  1637. 

when  ascertained  by  the  language,  §  1638. 

when  ascertained  by  the  writing  alone,  §  1639. 

superior  to  terms  or  written  contract,  when,  § 
1640. 

general  terms  restricted  by  main,  §  1648. 
Civ.   Code— so. 


950  INDEX. 

INTENTION— Continued. 

particular  clauses    subordinate    to    general,  § 

1050. 
words  inconsistent  witli,  rejected,  §  1653. 
presumption  of,  to  destroy  or  cancel  contract, 

§  1699. 
of  trustor,   necessary  to   creation   of  trust,    § 

2221. 
revision  of  contract  so  as  to  conform  to,  §  3399. 
how  ascertained  in  revision,  §  3401. 
fraudulent,  question  of  fact,  §  3443. 
INTEREST,  in  bequest  of  money,  when  accrues,  § 

1366. 
on  legacies,  §  1369. 
application  of  payments  to.  §  1479. 
estopped  by  offer  of  performance,  §  1504. 
loan  of  monev  presumed  to  be  upon,  §  1914. 
defined,  §  19i5. 
annual  rate  of,  §  1916. 
legal  rate  of,  §§  1917.  1918. 
when  becomes  part  of  principal,  §  1919. 
on  judgment,  §  1920. 

when  trustee  required  to  pay,  §§  2237,  2262. 
rate  on  bottomry,  §  3022. 
rate  on  respondentia,  §  3039. 
rate  on  protested  foreign  bill,  §  3236. 
as  damages,  §  3287. 
as  damages  in  actions  other  than  contract,  § 

3288. 
as  damages,   limit  of  rate  of,  by  contract,   § 

3289. 
acceptance  of  principal  waives,  §  3290. 
INTERESTS  IN  PROPERTY  absolute,  §  679. 
qualified,  §  680. 
.ioint,  §  683. 
partnership,  §  684. 
in  common,  §  685. 
present,  §  689. 
future,  §  690. 
perpetual,  §  691. 
limited,  §  692. 
future  vested,  §  694. 
future  contingent,  §  695. 
future  contingent,  may  be  alternative,  §  696. 
future  contingent,   not  void    because  improb- 
able, §  697. 
future  right  of  posthumous  children,  §  698. 


INDEX.  951 

IXTERESTvS  IN  PROPERTY— Continued. 
future,  pass  by  transfer,  §  G99. 
mere  possibility  of,  not  transferable,  §  700. 
denominated  estates,  §  701. 
classification.  §  702. 
future,  none,  unless  specified,  §  703. 
when  void  for  suspendins:  alienation,  §  716. 
future,  how  defeated.  §§  739,  740. 
future,  when  not  defeated,  §§  741.  742. 
time  of  creation  of,  §  749. 
chattel,  §  70.5. 

meruer  of.  destroys  servitude.  §  811. 
what  affected  by  transfer,  §  1083. 
certain,  in  remainder,  not  affected  by  death  of 

devisee,  §  11.34. 
in  ship,  how  transferred,  §  1135. 
in  existing  trust,  how  transferred,  §  1135. 
trustee  must  crive  beneficiary  notice  of  acquisi- 
tion of,  §  2233. 
transfer  of.  when  mortgage,  §  2921. 
INTERPRETATIOX,  representation  in  insurance, 
§  2573. 
agreement  to  indemnify,  §  2778. 
of  codes.    See  Codes, 
of  contracts.     See  Contracts, 
of  conveyances.    See  Conveyances, 
of  Definitions.    See  Definitions, 
of  guaranty.    See  Guaranty, 
of  negotiable  instrument.     See  Negotiable  In- 
strument, 
of  obligations.    See  Obligations, 
of  suretyship.     See  Surety, 
of  wills.     See  Wills, 
of  words  and  phrases.     See  Words, 
of  writings.     See  AYritings. 
INTERPRETER,  officer  talking    acknowledgment 

may  employ,  §  12ul. 
INTESTACY,  will  interpreted  to  avoid,  if  possible, 
§  1320. 
disposition  of  property  in  case  of,  §  1384. 
succession  in  case  of.    See  Succession. 
INUNDATION,    voluntary   deposit   in   case   of,    § 
1815. 
duty  of  depositary,  §  1816. 
INA'ENTOR.     See  Product  of  Mind. 
INYENTORY  of  separate  property  of  wife,  §  165. 
effect  of  filing,  §  166. 
specific  legatee  must  make  and  deliver,  §  1365. 


952  INDEX. 

INVENTORY— Continued. 

assiijnor  for  benefit  of  creditors  must  make,  §§ 
3401,  34(;2. 
INVESTMENT  of  trust  money,  §  2261. 

of  tiuardians.     See  Guardian  and  Ward. 
INVOLUNTAllY  DEPOSIT.     See  Deposit. 
IRRIGATION,  act  regulating  sale,  rental,  and  dis- 
tribution of  waters  for,  p.  843,  Stat. 

act    authorizing    supervisors    to   fix   rates    at 
which  water  sold.  p.  850,  Stat. 

act  providing  for  securing  rights  of  way  for 
conveyance  of  water,  p.  843,  Stat. 

statutes  relating  to   generally.      See   General 
Laws,  title  Irrigation. 
ISLANDS  in  navigable  streams,  §  1016. 

in  unnavigable  streams,  §  1017. 

formed  by  division  of  stream,  §  1018. 
ISSUE,  construction  of  word,  §  1071. 
JETTISON  defined,  §  2148. 

in  what  order  made,  §  2149. 

by  whom,  §  2150. 

loss,  how  borne,  §  2151. 

loss  by,  called  general  average  loss,  §  2152. 

loss  of  cargo  stowed  on  declv,  §  2154. 

application  of  rules  concerning,  §  2155. 
JOINT  authority,  construction  of  words,  §  12. 

ownership,  §  683. 

interest  defined,  §  683. 

authorship,  §  981. 

and  several  obligation,  §  1427. 

obligation,  §  1428. 

obligation,  contribution,  §  1429. 

contribution  of  parties,  §1429. 

debtor,  effect  of  performance  by  one,  §  1474. 

creditor,  performance  to  one,  §  1475. 

creditor,  directions  by  one,  §  1476. 

debtors,  effect  of  release  of  one,  §  1543. 

and  several,  contract  when  presumed,  §  1659. 

owners,  delivery  of  deposit  to,  how  made,   § 
1827. 

service,   how  performed   after  death  of  joint 
employee,  §  1991. 

interest,  change  in,  does  not  affect  insurance,  § 
2557. 

drawees,  presentment  to,  §  3187. 
JUDGES  AND  JUDICIAL  OFFICERS    may  sol- 
emnize marriage,  §  70. 

may  take  acknowledgments,  §  1181. 

proceedings  before,  for  adoption  of  child,  §  226. 


INDEX.  95t 

JUDGES,  ETC.— Continued. 

duty  in  sueti  case,  §  227. 

duty  on  examination  of  insane  person,  §  258. 

application    for    appraisement    on    execution 
a,2:ainst  homestead,  §  1245. 

duty  on  homestead  petition,  §  1249. 

duty    on  return    of    appraisers,  §§  1253,  1254, 
1258. 

approval   of  bond   of  assignee  for  benefit  of 
creditors,  §  3467. 

may  require  assignee  to  account,  when,  §  2469. 

may  consent  to  apprenticeship  of  child,  when, 
§  265. 
JUDGMENT,  annulling  marriage.  §  86. 

instruments  evidencing  title  declared    by.  ac- 
knowledged how,  §§  1159,  1204. 

interest  on,  §  1920. 

attornment  to  stranger  by  virtue  of.  §  1948. 

on  dissolution  of  partnership,  §  2452. 

on  indemnity,  §  2778. 

by  creditor  against  surety,  effect  of,  §  2839. 

lien,  §  3067. 

of  rescission,  §  3406. 

of  cancellation,  §  3412. 

priority,  bona  fide  purchaser,  judgment  credit- 
or, §  1214. 
JUDICIAL  SALP:,  implied  warranty  on,  §  1777. 

])ledgee  may  foreclose  redemption  by,  §  3011. 
JUSTICE  OF  THE  PEACE  may  solemnize  mar- 
riage, §  70. 

consent  to  apprenticing  child,  §  265. 

order  meeting  of  corporations,  when,  §  311. 

may  talie  acknowledgment,  §  1181. 

certificate  of  County  Clerk  thereupon,  §  1194. 
KINDRED,  degree  of,  how  established,  §  1389. 

series  of  degrees  of.  §  1391. 

direct  line  of,  §  1392. 

collateral  line  of,  *5  1393. 

of  half-blood  inherit  equally,  §  1394. 
KNOWLEDGE.     See  Notice. 

of  principal  not  necessary  to  create  guaranty,  § 
2788. 

necessary  to  ratification,  §  3314. 
LADING.    See  Bill  of  Lading. 
LAND  defined,  §  659. 

state,  and  appuitenance  thereto,  when  granted 
to  corporation,  §§  474-476. 

when  such  reverts  to  State,  §  477. 

is  real  property,  §  658. 


954  INDEX. 

LAND— Continued, 
defined,  §  059. 

limitation  on  leases  of  aj?ricailtural,  §  717. 
burdens  and  servitudes,  §§  801,  802. 
rijibt  of  flooding,  an  easement,  §  801. 
riglits  of  owner,  §  829. 
as  real  property.     See  Property. 
LAND  AND  BUILDING    CORPORATION.    See 

Corporations.  Kinds  of. 
LANDLORD  AND  TENANT.     See  Lease;  Rent; 

Repair, 
tenant  for  life,  heirs  of,  when  take  as  purchas- 
ers, §  779. 
relation  of,  how  terminated  at  will,  §  789. 
tenant  at  will,  how  required  to  quit,  §  789. 
when  landlord  may  re-enter  on  property,  §  790. 
tenant  for  life,  rights  of,  §  818. 
tenant  for  years  or  at  will,  rights  of,  §§  819, 

S20. 
tenant  may  remove  what  fixtures,  §  1019. 
attornment   by   tenant,   when   unnecessary,    § 

lllL 
landlord  must  repair,  when,  §  1941. 
tenant   may   repair    at   expense    of   landlord, 

when,  §  1942. 
acceptance  of  rent  by  landlord  renews  lease,  § 

1945. 
continued  possession,    when  renews    lease,   § 

1945. 
attornment  by  tenant,  when  void,  §  1948. 
tenant  must  give  notice  to  landlord  of  adverse 

proceeding,  §  1948. 
when  rent  payable  by  tenant,  §  1947. 
tenant  of  part  room  entitled  to  whole,  §  1949. 
tenant  must  inform  landlord  of  adverse  pro- 
ceedings, §  1949. 
tenant  released  from  rent  by  letting  room  in 

parts,  §  1950. 
landlord  must  not  let  room  in  parts,  §  1950. 
number  of  cubic  feet  required  for  each  person, 

p.  801,  Stat, 
damages  for  Avillful  holding  over,  §§  3344,  3345. 
LAI*SP]  OF    TIME,  divorce    denied    on  showing 

what,  §  111. 
defined,  §  125. 
presumptions  arising;   from  may  be  rebutted,  § 

12a. 

proposal  to  contract,  when  revolted  by,  §  1587. 


INDEX.  IBB 

LAPSE  OF  TIME— Continued. 

partnership  dissolved  by,  §  2450. 
does  not  extinenisb  lien,  §  2911. 
extinguishes  bottomry  lien,  §  3027. 
does  not  legalize  nuisance,  §  3490. 
as  limitation.     See  Limitations. 
LATEILVL  SUPPORT,  easement  of.  §§  801.  832. 
LAWFUL,  object  of  contract  must  be,  §  1596. 
consideration  must  be,  §  IGOT. 
contract  interpreted  so  as  to  be,  §  1643. 
LAWS,  effect  of  Code  on,  §  20. 
LEASE.     See  Landlord  and  Tenant;  Rent, 
of  agricultural  lands,  limitation,  §  717. 
of  town  or  city  lots,  limitation,  §  718. 
remedies  of  lessor  against  lessee  and  assigns 

for  breach,  §  822. 
remedies  of  lessee  against  assigns  of  lessor  for 

breach,  §  823. 
for  life,  rent,  how  recovered,  §  824. 
tenant  may  remove  what  fixtures,  §  1019. 
lessor  upon  hire  must  secure  quiet  possession, 

§  1927. 
remedies  of  lessor     against     lessee     misusing 

property.  §  1930. 
lessor  may  terminate,  when,  §  1931. 
Of  personal  property,  letter  must  deliver  to  hirer, 
§  1955. 
secure  hirer  in  quiet  enjoyment,  §  1955. 
put  in  proper  condition,  §  1955. 
repair,  when,  §  1955. 

bear  extraordinary  expenses,  when.  §  1956. 
liable  to  hirer  for  certain  expenditures,  §  1958. 
Of  real  property,  lessor  must  put  in  proper  con- 
dition, when,  §  1941. 
lessor  must  repair,  when,  §  1941. 
lessor  liable  for  certain  expenditures,  §  1942. 
term,  when  no  limit  fixed,  §  1943. 
of  lodgings  for  indefinite  term.  §  1944. 
when  presumed  renewed,  §  1945. 
notice,  when  necessary  to  terminate,  §  1946. 
rent  for,  when  payable,  §  1947. 
tenant  must  inform  lessor  of  adverse  proceed- 
ings, §  1949. 
in  subdivisions  of  rooms,  forbidden,  §  1950. 
LEi^ACY.     See  Ademption;  Wills. 
LEGISLATION,  cannot  be  restrained  by  injunc- 
tion, §  3423. 
LE0ITI:MACY.     see  Illegitimacy. 

"    "  84. 


956  INDEX. 

LEGITIMACY— Continued. 

of  children  of  divorced  marriages,  §§  144,  145. 

presumption  of,  §  193. 

of  children  born  out  of  wedlock,  §  194. 

who  may  dispute,  §  195. 
LESSEE.     See  Lease. 
LESSOR.     See  Lease. 
LETTER  OF  CREDIT  defined,  §  2858. 

may  be  addressed  to  Avhom,  §  2859. 

writer  liable  to  whom,  §  2860. 

special  defined.  §  2801. 

general  defined,  §  2862. 

general,  any  person  may  give  credit  under,  § 
2862. 

general,  several  persons  may  give  credit  under, 
§  2863. 

when  deemed  continuing  guaranty,  §  2864. 

writer  liable  without  notice,  when,  §  2865. 

writer  liable  only  for  credit  duly  given,  §  2866. 

credit  given  must  agree  with  terms,  §  2866. 
LETTERS,  ownership  of  private,  §  985. 

containing  valuables,  when  common  carrier  not 
liable  for  loss  of,  §  2177. 
LIABILITIES  of  minors  and  persons  non  compos 
for  wrongs,  §  41. 

husband  for  support  of  wife,  §  174. 

depositary,  for  damage  from  wrongful  use  of 
deposit,  §  1835. 

depositary,  for  damage  from  negligence,  §  1840. 

of  innlcepers,  §  1859. 

inkeepers,  Avhen  excused  from,  §  1860. 

finder  of  lost  property,  §  1S65. 

factor  to  principal,  <^  2029. 

factor  cannot  relieve  himself  from,  §  2030. 

of  ship-master  on  abandonment  of  ship,  §  2041. 

carrier  may  terminate  his,  how,  §  2121. 

of  inland  carrier  for  loss,  §  2194. 

marine  carrier  for  loss,  §§  2197,  2198. 

trustee  mingling  trust  funds,  §  2236. 

trustee,  for  breach  of  trust,  §§  2237,  2238. 

partners,  §§  2442.  2443. 

one  held  out  as  partner,  §§  2444,  2445. 

indemnity  against,  §  2778. 
LIBEL,  defamation  by,  §  44. 

defined,  §  45. 
LICENSE,  marriage,  §  69. 

person  solemnizing  marriage  must  require  pro- 
duction of,  §  72. 


INDEX.  957 

LICENSE— Continued. 

raarriase,  original  to  be  filed  with  recorder,  § 
74. 

copy  given  to  parties,  §  74. 

to  take  tolls  on  bridges,  wharf,  ferry,  §  528. 

building  and  loan  associations,  licenses  for,  p. 
733,  §  17,  Stat. 
LIEN  of  hotel,  inn,  boarding-house,  and  lodging- 
house  lieepers.  §  ISGl. 

homestead  liable  for  certain,  §  1241. 

does  not  revolve  prior  will.  §  1301. 

seaman  not  to  lose  his,  by  agreement,  §  2052, 

of  carrier  for  freightage,  §  2144. 

carrier  for  fare,  §  2190. 

for  freightage,  ship's  manager  cannot  give  up, 
§  2389. 

of  partner  upon  partnership  property,  §  2405. 

of  mining  partner,  §  2514. 

of  mining  partner,  purchaser  of  interest  takes 
subject  to,  §§  2517,  2518. 

accessory  to  some  obligation,  §  2909. 

defined,  §  2872. 

general,  defined,  §  2S74. 

special,  defined,  §  2875. 

right  of  holder  of  in  certain  case,  §  2876. 

<?ontracts  subject  to  law  of,  §  2877. 

how  created,  §  2881. 

by  operation  of  law  does  not  exist  until  per- 
formance due,  §  2882. 

created  upon  future  interest,  §  2883. 

created  as  security    for  future    obligation,   § 
2884. 

cannot  transfer  title,  §  2888. 

redemption  cannot  be  restrained,  §  2889. 

do  not  imply  personal  obligation,  §  2890. 

confined  to  original  obligation,  §  2891. 

do  not  limit  creditor's  right  to  enforce  obliga- 
tion, §  2892. 

holder  not  entitled  to  compensation  for  trouble, 
§  2893. 

priority  of,  according  to  creation,  §  2897. 

priority  of  mortgage  over  other,  §  2898. 

order  of  resort  in  case  of,  §  2899. 

redemption,  who  has  right  of,  §  2903. 

redemption,  when  inferior  lienor  has  right  of, 
§  29U4. 

redemption,  how  made,  §  2905. 

extinguished,  hoAV,  §  2910. 


958  INDEX. 

LIEN— Continued. 

by  sale  or  conversion  of  subject,  §  2910. 

by  Japse  of  time,  §  2911. 

not   bv   partial   performance   of   obligation,   § 

2912! 
by  restoration  of  subject  to  owner,  §  2913. 
of  pledge  dependent  on  possession,  §  2988. 
holder  may  pledge  subject  to  extent  of  lien,  § 

2090. 
of  seller  of  real  property,  §  3046. 
of  seller,  how  waived,  §  3047. 
against  whom  valid,  §  3048. 
apportionment  of,  §  2912. 
of  seller  of  personal  property,  §  3049. 
of  buyer  of  real  property,  §  3050. 
for  services  on  personal  property,  §  3051. 
of   manufacturer,    repairer,   etc.,     of    personal 

property,  §  30">2. 
of  factor,  §  3053. 
banlier,  §  3054. 
ship-master,  §  3055. 
mates  and  seamen,  §  3056, 
sheriffs  and  similar  officers,  §  3057. 
of  iudgment,  §  3058. 
of  mechanic,  §  30.59. 
upon  ships  for  debts,  §  3060. 
stoppage  in  transit  as  mode  of  enforcement,  § 

3076. 
damages  for  conversion  of  property  subject  to, 

§  3338. 
servants,  liens  of,   where  wages  not  paid  by 

corporation,  p.  750  et  seq.,  Stat, 
loggers  and  laborers'  liens,  act  giving,  p.  797, 

Stat. 
act  to  secure  wages  of  employees  on  thresh- 
ing .machine,  p.  800,  Stat, 
mechanics  and  laborers    hired   by  corporation, 

lien  of,  p.  750,  Stat, 
animals,  lieu  in  favor  of  owner  of  animal  tor 

propagating  purposes,  p.  795.  Stat, 
depositary  for  hire,  lien  of,  §  1856. 
depositary's,  sale  of  property  to  satisfy,  §  1857. 
mechanics'.    See  Mechanics'  Liens. 
LIENS,  MECHANICS'.    See  Mechanics'  Liens. 
LIFE  INSURANCE.    See  Insurance.  Life. 
LIMITATIONS  for  divorce,  §§  124,  127. 

of  claim  of  aliens  to  inherited  property,  §  672. 
of  leases  of  certain  real  property,  §§  717,  718. 


INDEX.  959 

LIMITATIONS— Continued. 

of  successive  estate  for  life,  §  774. 

clear  and  distinct,  in  grant,  not  controlled  by 

other  words,  §  1066. 
words  of  in  will,  §  1335. 
directors,  what  actions  against  never  ban-ed, 

§  309. 
conveyance  by  married  women,  action  to  re- 
cover property  when  barred.  §  164. 
action  by  husband  to  recover  property  convey- 
ed bv  wife,  limitation  of.  §  164. 
LINEAL  WARKANTIES  abolished,  §  1115. 
LIQUIDATED    DAMAGES,    when    contract    may 

fix.  for  breach,  §§  1670,  1671. 
LIQUIDATION.    See  Partnership. 
LITERAKY  CORPORATIONS.  See  Corporations, 

Kinds  of. 
LITERARY  PROPERTY.    See  Products  of  Mind. 
LIVESTOCK,  act  to  prevent  combinations  to  ob- 
struct sale  of  livestock,  p.  705,  Stat. 
LOAN.    See  Hiring. 

ship-master  may  bon-ow.  on  credit  of  owner, 

§  2374. 
ship's   manager  has   no  power  to  borrow  on 

cargo  or  ship.  §  23S9. 
rights  of  lender  under  bottomry,  §§  3023,  3025. 
For  exchanae  defined,  §§  1902,  1903. 
transfers  title,  §  1904. 

contract  cannot  be  modified  by  lender,  §  1905. 
provisions  applicable  to,  §  1906. 
For  use  defined,  §  1SS4. 
does  not  transfer  title,  §  1885. 
borrower  of  animals,  obligations  of,  §  1887. 
borrower  under,  must  use  what  care,  §  1886. 
borrower  must  use  what  sljill.  §  1888. 
when  to  repair  injuries.  §  1889. 
how  must  use  thing  lent,  §  1890. 
must  not  relend,  §  1891. 
when  to  bear  expense,  §  1892. 
lender  liable  for  defect,  §  1893. 
may  require  return  of  thing  lent,  §  1894. 
when  may  terminate,  §  1895. 
duties  of,  on  termination  of,  §  1896. 
Of  money  defined,  §  1912. 
to  be  repaid  in  current  money,  §  1913. 
for  rewai-d,  §  1914. 
reward  for,  called  interest.  §  1915. 
annual  rate  of  interest,  §  1916. 
legal  interest,  §§  1917,  1918. 


960  INDEX. 

LOAN— Continned. 

interest,  when  becomes  part  of,  §  1919. 
interest  on  judc:ment,  §  1920. 
Under  bottomry  defined,  §  3017. 
rate  of  interest,  §  3022. 
risbts  of  lender,  §  3023. 
when  due,  §  302G. 
LODGING-HOUSE  KEEPERS,  lien  on  baggage, 

§  1861. 
sale  of  unclaimed  baggage  by,  §  1862. 
posting  of  statement  of  charges  by,  §  1863. 
number  of  cubic  feet  required  for  each  person, 

p.  801,  Stat. 
act    concerning    lodging-houses    and    sleeping 

apartments  in  cities,  p.  801,  Stat, 
misdemeanor,  violation  of  cubic  air  law,  p.  802, 

§  2,  Stat. 

See  Lodgings. 
LODGINGS,    for   what   term    presumed    hired,  § 

1944. 
rent,  when  payable,  §  1947. 
LOSS,  by    collision  of    ships,    how    apportioned, 

§  1973. 
of   thing  deposited,  obligation    of    depositary, 

§  1838. 
innkeeper,  when  not  liable  for,  §  1860. 
employer  must  indemnify  employee  for,  caused 

by  negligence  of  former,  §  1971. 
by  jettison,  how  borne,  §§  2151,  2152. 
liability  of  inland  carrier  for,  §  2194. 
of  marine  carrier  for,  §  2197. 
in  partnership,  share  of  partners  in,  §  2403. 
in  partnership,  agreement  for  division  of,  when 

implied,  §  2404. 
partner  to  be  indemnified  for  certain,  §  2412. 
insurer  liable,  for  what,  §  2626. 
liable  when   incurred   in    rescue    from    peril, 

§  2627. 
insurer  not  liable  for.  when  caused  by  peril  not 

insured  against,  §  2628. 
not  liable  when  caused   by  fraud   of   insured, 

§  2629. 
when  caused  by  negligence,  §  2629. 
notice  of,  must  be  given,  §  2633. 
defects  in  notice,  how  waived,  §  2635. 
delay  in  notice  of,  how  waived,  §  2636. 
In  marine  insurance,  total  or  partial,  §  2701. 
when  partial,  §  2702. 
total,  may  be  actual  or  constructive,  §  2703. 


■I' 


INDEX.  961 

LOSS— Continned. 

total  actual,  defined,  §  2704. 

total  consti-uctive,  defined,  §  2705. 

actual,  when  presumed,  §  2706. 

notice  of    abandonment    not    necessary  on,   § 

2709. 
free  of  average,  defined,  §  2711. 
insurance  confined  to,  does  not  cover  construc- 
tive loss,  §  2712. 
how  estimated,  under  open  policy,  §  2741. 
effect  of  total,  on  contract  of  bottomry,  §  3025. 
LOST  PROPERTY.    See  Finder. 
LUGGAGE,  lien  of  hotel,  inn,  boarding-house,  and 
lodging-house  keepers  on,  §  18G1. 
sale  of  unclaimed,  for  storage,  etc.,  §  1862. 
defined,  §  2181. 
common  carrier  of  persons  must  carry,  when, 

§  2180. 
common  carrier  of  persons,  how  must    carry, 

§  2181. 
liability  of  common  carrier  for,  §  2182. 
common  carrier  must  deliver,  where,  §  2183. 
common  carrier  has  lien  upon,  for  fare,  §  2190. 
LUNATICS.    See  Persons  of  Unsound  Mind. 
MAIL,  notice  of  dishonor  by,  §  3144. 

notice  of  dishonor  sent  by,  when,  §  3148. 
notice  of  dishonor  excused  when  there  is  none, 

§  3155. 
act  permitting  mail  carriers  to  ride  free,  p.  832, 
Stat. 
MAJORITY,  words  giving    joint    authority  gives 
such  to,  §  12. 
of  members  of  mining  partnership  control  busi- 
ness, §  2520. 
MA.TORITY,  AGE  OF,  what  is,  §  25. 

period  of  minority,  how  calculated,  §  26. 
MALES  under  twenty-two,  minors,  §  25. 

of  eighteen  and  upwards  capable  of  marrying, 
§  56. 
MALICE,    when    not    inferred    from    publication, 
§  47. 
interest  as  damages  in  case  of,  §  3288. 
exemplary  damages  for,  §  3294. 
MANUFACTURE,  agreement  to,  need  not  be  in 
writing,  §  1740. 
implied  warranty  on  sale  of  goods,  §§1769,1770. 
MARLNE     CARRIERS.     See     CaiTiage;     Carrier. 
Common. 
Civ.  Code— 81. 


^^  INDEX. 

MARINE  INSURANCE.    See  Insurance. 
MARKS  on  goods  sold,  implied  warranty  of  gen 

uineuess,  §  1773. 
MARKS,  TRADE.    See  Trademarks. 
MARRIAGE,  defined,  §  55. 

who  capable  of,  §  5G. 

proof  of,  how  made,  §  57. 

when  voidable  from  incapacity,  §  58. 

when  voidable  from  fraud  or  force,  §  58. 

incestuous,  §  59. 

between  whites  and  negroes,  etc.,  void,  §  60. 

subsequent,  when  void,  §  61. 

promise,  when  neither  party  held  by,  §  62. 

contracted  without  state,  §  63. 

consent  alone  will  not  constitute,  §  55. 

declaration  of,  time  of  filing  of,  §    79V2, 

declaration  of,  failure  to  file  penalty  for,  §  79i^. 

must  be  solemnized,  §  55. 

liow  solemnized,  §  68. 

license,  §  69. 

by  Avhom  solemnized,  §  70. 

no  particular  form  for  solemnization,  §  71. 
■  substantial  requisites  for  solemnization,  §  72. 

certificate,  §  73. 

certificate  to  parties  and  county  recorder,  §  74. 

registry  of,  §  74. 

declaration,  how  made,  §  76. 

declaration  to  be  recorded,  §  77. 

action  to  aflirm  unsolemnized,  §  78. 

action  where  party  denies,  §  78. 

duty  of  recorder  as  to  registry,  §  79. 

judicial  determination  of  void,  §  80. 

when  annulled,  §  82. 

action  to  annul,  when  and  by  whom  commenc- 
ed, §  83. 

children  of  annulled,  §  84. 

custody  of  children  of  annulled,  §  85. 

effect  of  judgment  of  nullity,  §  86. 

dissolution,  §  90. 

husband  not  liable  for  debts  of  wife  contracted 
before,  §  170. 

legitimacy  of  issue  after  dissolution,  §  194. 

releases  from  parental  authority.  §  204. 

of  ward,  supersedes  guardian,  §  254. 

restraint  upon,  when  void,  §§  710,  1676. 

effect  of,   upon  will    made  previous,   §§   1298- 
1300. 

damages  for  breach  of  promise  of,  §  3819. 


INDEX.  96^ 

^[ARRI  AGE— Continued. 

advertisinc:  to   annul   is   a  misdemeanor.    See 
Penal  Code,  §  loOVo. 

between  members  of  peculiar  reli.ffious  denom- 
inations, how  licensed  and  solemnized,  §  T9i/^. 

divorced  persons    cannot    marry    within    one 
year,  §  01. 
MARRIAGE     SETTLEMENTS,     how     executed, 
§  ITS. 

acknowled2:ed  and  recorded.  §  179. 

effect  of  recording  or  nonrecording,  §  180. 

minor  may  make.  §  181. 
MARRIED  WOMEN  may  become  corporators,  of- 
ficers, and  members  of  certain  corporations, 
§  285. 

stock  of,  how  transferred.  §  32.5. 

dividends  payable  to,  §  325. 

mav  hold  stock  in  homestead  corporations,   § 
561. 

in  savings  and  loan  corporations,  §  575. 

grant  by.  acknowledged  how,  §  1093. 

power  of  attorney  acknowledged  how,  §  1094, 

effect  of  conveyance  by,  §  1187. 

mav  dispose  of  separate  propertv  by  will,   § 
1273. 

acknowledgment  by,  §§  1186  et  sep. 

acknowledgment  by.  how  executed.  §  1093. 

power  of  attornev  of.  how  executed.  §  1094. 
MARSHALING  ASSETS,  order  of,  §§  2899,  3433. 
MASCULINE    GENDER,    includes   feminine   and 

neuter,  §  14. 
MASONIC   FRATERNITY,   may   hold   what   real 

estate.  §  596. 
MASTER  AND  SERVANT. 

defined,  §  2009. 

employment.    See  Employment. 

services.    See  Services. 

wages.    See  Wages. 

mutual  right  of  protection  between,  §§  49,  50. 

abduction  or  enticement  of  servant  forbidden, 
§  49. 

injury  to  servant  forbidden.  §  49. 

relation  of  master  and  servant.  §  264. 

contract  of  apprenticeship,  §  264. 

act  of  April  3.  1876.  as  to  apprenticeship,  §  276. 

who  may  bind.  §  276. 

liabilities  and  obligations,  §  276. 

relation  in  general,  §  2009. 


^64  INDEX. 

MASTER  AND  SERVANT— Continuerl. 

term  of  birinj?,  §§  2010,  2011. 

renewal  ol  relation  between,  §  2012. 

time  of  service,  §  2013. 

servant  to  deliver  over  to  master  without  de- 
mand, §  2014. 

master  may  discharge  servant,  §  2015. 

relation,  how  terminated,  §  2015. 

coercion  of  employee  not  to  join  union  is  a  mis- 
demeanor.   See  Penal  Code,  §  079. 

act  regulating  hours  of  labor  and  employment 
of  minors,  p.  775. 

payment  of  wages  of  mechanics  and  laborers 
of  corporation,  p.  750  et  seq. 

act    to   secure    lien  wages   of    employees   on 
threshing  machine,  p.  800,  stat. 

loggers  and  laborers'  liens,  act  giving,  p.  797, 
Stat. 

lieu  of  servant  where  wages  not  paid  by  cor- 
poration, p.  752,  §  2,  Stat. 

liens  of  mechanics  and  laborers  hired  by  cor- 
poration, p.  750,  Stat. 
MASTER,  SHIP'S.    See  Ships  and  Shipping. 
MATE,  power  of  master  of  ship  over,  §  2037. 

defined,  §2048. 

how  engaged  and  discharged,  §  2050. 

when  wages  of  begin,  §  2055. 

if  vessel  unseaworthy,   may  refuse  to  serve, 
§  2051. 

wrongfully    discharged,    may    recover    wages, 
§  2057. 

disabled  on  voyage,  entitled  to  wages,  §  2062. 

cannot  ship  goods  on  his  own  account,  §  2064. 
MATP]RIAL1TY  of  concealment  in  insurance,    § 
2565. 

of  representation  in  insurance,  how  determin- 
ed, §2581. 
MATERIALS,  ownership  of  thing  formed  out  of, 
of  another,  §  1028. 

of  thing  formed  by  uniting  inseparable,  §  1029. 

of  personal  property  by  uniting,  of  several  own- 
ers, §  1030. 

agreement  to  manufacture,  where  manufactur- 
er owns,  §  1740. 
MATURITY,   apparent,   defined,    §  3132. 

of  bill  payable  at  sight,  §  3134. 

of  promissory  note  paj'able  at  sight,  §  3135. 
MAXIMS  of  jurisprudence,  §  3509. 
MAYOR  may  solemnize  marriage,   §  70. 


INDEX.  96& 

MAYOR— Continued. 

may  take  proof  and  acknowledgment  of  instru- 
ments, §  1182. 
MEASURE  OF  DAMAGES.    See  Damages. 
MECHANICS'  LIENS,  where  regulated,  §  3059. 
MECHANICS'    INSTITUTES,    act   providing   for 

formation  of,  p.  737. 
MEETINGS,  public,  reports  of  are  privileged  com- 
munications, §§47,  48. 
MEMORANDUM  on  contract  for  sale  of  personal 
property,  §  1739. 
on  contract  for  sale  of  real  property,  §  1741. 
of  auctioneer  binding  on  parties,  §  1798. 
of  auctioneer  to  contain  what,  §  1798. 
MERCHANDISE,  implied  warranty  as  to  quality 

of.  §§  17G8-1771. 
MERGER  of  interests,   when  destroys  servitude, 
§  811. 
of  interests,  when  destroys  hiring,  §  1933. 
of  declarations  of  trust,  S  22.54. 
MESSAGES,  CARRIERS  OF.    See  Carriage;  Car- 
riers; Telegraph. 
MIND.    See  Product  of  Mind. 

MINES,  protection  of  stockholders  in,  §§  321,  587. 
act  for  protection  of  miners,  p. 
consolidation  of,  §  361. 

what  appurtenances  to.  deemed  fixtures,  §  G61. 
partnership  in.  defined,  §  2.511. 
partnership,  how  formed,  §  2512. 
lights  of  partner  in,  §  2513,  2.514. 
when  partnership  property,  §  2515. 
partner  may  convey  interest.  §  2516. 
effect   of   purchasing   partnership    interest,    §§ 

2517,  2518. 
power  of  partner  as  agent,  §  2519. 
majority  of  members  to   conduct  business.    § 

2.520. 
hydraulic  mining,  what  is,  §  1425. 
hydvatilic  mining,  where  can  be  carried  on,  § 

142. 
act  validating  record  of  notices  of  location  of 

mining  claims,  §  1159. 
affidavits  showing  work  or  posting  of  notices 

may  be  recorded,  §  1159. 
duty  of  mining  corporation  to  keep  books,  p. 

807,  §  1,  Stat. 
power  of  directors  to  sell,  lease,  mortgage,  or 
dispose  of  property,  p.  810,  Stat. 


966  INDEX. 

MINES— Continued. 

ri^ht  of  stockholder  to  examine  grounds,  p.  809, 
§  2,  Stat. 

duty  of  officers  of  mining  corporation  to  post 
accounts,  vouchers,  etc.,  and  penalty  for  fail- 
ure, p.  807,  §  1  et  seq.,  Stat. 

act  providing  for  removal  of  officers,  p.  804. 

escape  shaft,  duty  of  mine  owner  or  corpora- 
tion to  provide,  p.  803,  §  2.  Stat. 

escape  shaft,  failure  to  provide,  liability  for 
damages,  p.  803,  §  3,  Stat. 

second  mode  of  egress  to  be  provided  for  min- 
ers, p.  803,  §  1,  Stat. 
MINING   COIIPOKATIONS.    See  Corporations. 
MINING  PARTNERSHIPS.    See  Partnerships. 
MINORS,  posthumous  children.    See  Posthumous 
Children. 

who  are,  §  25. 

period  of  minority,  how  calculated,  §  26. 

custody,  §  32. 

cannot  give  delegation  of  power,  §  33. 

cannot  make  contract  respecting  real  estate, 
when,  §  33. 

contracts  subject  to  disaffirmance,  §  34. 

when  may  disaffirm,  §  35. 

cannot  disaffirm  contract  for  necessaries,  §  36. 

cannot  disaffirm  certain  obligations,  §  37. 

liable  for  wrongs,  §  41. 

not  for  exemplary  damages,  §  41. 

jiow  may  enforce  rights,  §  42. 

when  capable  of  marriage,  §  56. 

wife  entitled  to  earnings  of,  living  with  her 
apart  from  husband,  §  196. 

capable  of  marriage,  may  make  marriage  set- 
tlement, §  181. 

when  wages  may  be  paid  to,  §  212. 

may  apprentice  themselves,  §  264. 

act  of  April  3,  1876,  as  to  apprenticeships  of, 
§276. 

stock  of,  may  be  represented  at  meeting  of  cor- 
poration.   §  313. 

stock  in  homestead  corporations,  §  561. 

stock  in  savings  and  loan  corporations,  §  575. 

restraints  upon  marriage  of,  allowed,  §§  710, 
1676. 

allowance  out  of  fund  for  support  of,  §  726. 

may  contract,  to  what  extent,  §  1557. 

sale  of  tobacco  to  minor  under  sixteen,  §  308. 


INDEX.  967 

MINORS— Continued. 

guardian   of   children   in   orpbun   asylums,    p. 

776,  Stat, 
act  regulating  hours  of  labor  and  employment 
of  minors,  p.  775. 
Adoption  of  children.    See  Adoption. 
MISDEMEANOR,  supervisor  violating  statute  as 
to  sale  of  franchise,  p.  814,  §  2  Stat, 
violation    of    right    of   trademark,    p.  836,    §  2, 
Stat. 
MISREPRESENTATION    by    depositary,    when 
renders  him  liable,  §  1838. 
trustee  must  not  benefit  by,  §  2228. 
partner  must  not  benefit  by,  §  2411. 
fraudulent,  by  debtor,  as  to  value  of  pledge, 

§  2999. 
contract     through,    not     specifically    enforced, 
§  3391. 
MISTAKE  in  will,  how  corrected,  §  1340. 

consent  to  contract  given  by,  voidable,  §  1566. 

of  fact  or  law,  §  1576. 

of  fact  defined,  §  1577. 

of  law  defined,  §  1578. 

of  foreign  law.  mistake  of  fact,  §  1579. 

in  written  contract  disresrarded,  §  1640. 

right  to  rescind  for,  §  1690. 

thing    obtained    through,    restored    when,    §§ 

1712.   1713. 
thing  gained  by,  held  in  trust,  §  2224. 
MINTURE  of  trust  fund  by  trustee,  §  2236. 

of  goods.    See  Confusion  of  Goods. 
MOCK  AUCTIONS.    See  Auctions. 
MONEY,   performance  in  respect  to   payment,    § 
1478. 
oft'er  to  pay,  how  made,  §  1500. 
f'xcliange  of,  §  1804. 
implied  warranty  on  exchange,  §  1807. 
investment  of  trust.  §  2261. 
negotiable  instrument  must  be  pavable  in,   § 
3088. 
MONTH  defined,  §  14. 

MONOPOLIES,  act  to  prevent  combinations  to  ob- 
struct sale  of  livestock,  p.  705. 
MONUMENTS,    coterminous     owners     bound     to 

maintain,   §  841. 
MO  UAL  OBLIGATION,  how  far  good  considera- 
tion, §  1006. 


968  INDEX. 

MORALS,  contract  contrary  to  good,  unlawful,  § 

1667. 
MORTGAGES,  power  to  sell  in,  deemed  part  of 
security,  §  858. 

to  be  recorded,  §  1164. 

separate  book  for  recording,  §  1171. 

homestead  liable  for,  §  1241. 

husband  and  wife  must  acknowledge,  of  home- 
stead, §  1242. 

on  property  not  a  revocation  of  will,  §  1302. 

insurance  by  mortgagor  for  benefit  of  mortga- 
gee, §  2541. 

insurance,  effect  of  mortgagor's  action,  §  2542. 

lien  discharged  by  lapse  of  time,  §  2911. 

defined,  §  2921. 

on  what  created,  §  2921. 

how  only  created,  renewed,  or  extended,  §  2922. 

a  special  lien,  §  2923. 

what  deemed,  §  2924. 

absolute  transfer  shown  to  be,  when,  §  2925. 

on  Avhat  lien,  §  2926. 

does  not  entitle  mortgagee  to  possession,  §  2927. 

mortgagee    may    acquire    possession    by    new 
agreement,  §  2927. 

not  a  personal  obligation,  §  2928. 

person  bound  by,  may  not  impair  security.   § 
2929. 

title  acquired  subsequent  to,   inures  to  mort- 
gagee,  §  2930. 

may  be  foreclosed,  §  2931. 

power  of  sale  given  by,  §  2932. 

power  of  attorney  to  execute,  how  made,  §  2933. 

recording  assignment,  §  2934. 

recording  assignment,  when  not  notice,  §  2935. 

asigument  of  debt  secured  by  carrier's  secur- 
ity, §  2936. 

how  discharged,  §§  2938-2940. 

penalty  for  not  acknowledging  satisfaction,  § 
2041. 

bottomry   and   respondentia   not  governed   by 
law  of,  §  2942. 

what  subject  to,  §  2947. 

form  of,  for  real  property,  §  2948. 

what  must  be  recorded  as.  §  2949. 

conveyance  with  mortgage  under  cover,   how 
defeated,    §  2950. 

of  real  property,  how  acknowledged,  recorded, 
etc.,  §2952. 


INDEX.  969 

MORTGAGES— ContinnecL 

proceedings  on  foreclosure.    See  Foreclosure. 

satisfaction  of,  hj  foreign  executor  or  admin- 
istrator,  §  2939V2. 

bona  fide  mortga.i2:ee.  rights  as  against  judg- 
ment creditor,  §  1214. 
Of  personal   property,  on    what    may  be    made, 
§  2955. 

form,   §  2956. 

when  void  against  creditors  and  incumbranc- 
ers. §  2957. 

of  ship,  when  void,  §  2958. 

where  recorded.  §  2959. 

of  property  in  transit,  §  2960. 

of  property  of  common  carrier,  §  2961. 

recording  in  different  places,  §  2962. 

how  aclinowledged,  recorded,  etc.,   §  2963. 

certified  copy  recorded  in  other  county,  §  2964. 

property,  when    exempt   from    operation  of,  § 
2965. 

may  be  foreclosed,  §  2967. 

property  in,  may  be  attached,   §  2968. 

proceedings    when    property    in    attached,    §§ 
2969,  2970. 

provisions    concernimr,  do  not    applv  to  ship, 
§  2971. 

on  growing  crops,   §§  2955,  2972. 
MOTHER  of  illegitimate  unmarried  minor  entitled 
to  custody,  §  200. 

father  cannot  transfer  custody  of  child  without 
writen  consent  of,  §  197. 

illegitimate  child   cannot  be  adopted  without 
consent  of,  §  224. 

consent,   when  necessary  to  apprenticeship,   § 
265. 

of  illegitimate  child  succeeds  to  his  propertv. 
§  1388. 
MUTrALITY  of  consent,  §  1580. 

of    intention,    contract    interpreted    to    give, 
§  1036. 
NAME  of  adopted  child,  §  228. 

of  corporations  to  be  stated  in  articles,  §  290. 

error  in  articles  of  incorporation  does  not  inval- 
idate, §  357. 

notice  of  change  of  partnership  sufficient  notice 
of  dissolution,  §  2454. 

fictitious,  when  may  be  used,  §§  2466,  2467. 


970  INDEX, 

NAME— Continued.  ,  •     +     k^  ^i^^ 

certificate  of  change  of  partnership  to  be  filed 

and  published,  §  24G9. 
county  clerk  to  keep  register  of  partnership, 

§  24*70. 
conveyances  bv  persons  whose  names  changed, 

p.  765,  §  1,  Stat, 
record  of  conveyances  by  persons  whose  names 
changed,  p.  766,  §  3,  Stat. 
NAVIGATION,  domestic,  §  962. 
foreign,   §962. 
rules  of,  §  970. 

collision  from  breach  of  rules,  §§  971,  972. 
NECESSARIES,  minors  and  persons  of  unsound 
mind  cannot  disaffirm  contract  for,   §  36. 
neglect  of  husband  to  provide,  ground  for  di- 
vorce, §  105. 
furnished  to  wife  at  cost  of  husband,  §  174. 
promise  of  adult  child  to  pay  for,   furnished 

parent,  valid,  §  206. 
furnished  to  child,  when  parent  liable,   §  207. 
furnished    to    child,  when    parent    not    liable, 
§208. 
NEGLIGENCE.     See    Care;    Contributory    Negli- 
gence;   Delay;  Skill, 
willful,  §  105. 

willful,  of  husband,  ground  for  divorce,   §  92. 
willful,  ground  for  annulling  indentures  of  ap- 
prenticeship, §  276. 
must  continue  how  long  to  constitute  ground 

for  divorce.  §  107. 
liability  for,  §  1714. 
libility  of  depositary  for,  §§  1838,  1840. 
liability  of  innkeeper  for,  §  1859. 
borrower  to  repair  injuries  caused  by,  §1889. 
hirer  to  repair  injuries  caused  by,  §  1929. 
employer    must    indemnify    employee  for    loss 

caused  by,   §  1971. 
responsibility  of  employee  for.  §  1990. 
carrier  cannot  exonerate  himself  from  antici- 
pated liability  to  be  caused  by  future,  §  2175. 
person    claiming    under    ostensible    authority 

must  be  free  from,  §  2.334. 
of  agent,  principal  responsible,  when,  §  2338. 
shipmaster,  when  responsible  for,  of  employees, 
§  2383.  .,  ^ 

shipmaster,   when    responsible    for,    of    pilot, 
§2384. 


II 


INDEX.  971 

NEGLIGENCE— Continued. 

insurer,  wlien  liable  for  loss  throusrb,  §  2629 

delay,  liability  of  carrier  f(.r.  §  216g. 
NEGOTIABLE  INSTRUMENT.    See  Bills  of  Ex- 
change;  Checks;  Holders;  Indorsement;  No- 
tice; Promissory  Notes. 

defined,    §  3087. 

to   be   for   unconditional   payment   of   money, 
§3088. 

payee  must  be  ascertainable,  when,  §  3989. 

in  alternalive,  §  3090. 

date,   §  3091. 

may  contain  pledge,  §  3092. 

must  not  contain  other  contract,  §  3093. 

may  bear  any  date,  §  3094. 

different  species,  §  3095. 

interpretation  of,  as  to  time  of  payment,  §  3099. 

as  to  place  of  payment,  §  3100. 

when  payable  to  order.  §  3101. 

when  issued  unindorsed,  §  3102. 

when  payable  to  fictitious  person,  §  3103. 

when   and   for   what   presumed   to  be   made, 
§3104. 

indorsement  of,  defined,  §  3108. 

how  to  be  made,  §  3109. 

may  be  made  on  separate  paper,  when,  §  3110. 

ueneral,  defined.   §  3112. 

special,  defined.  §3113. 

general,  how  made  special,  §  3114. 

special,  how  may  destroy  negotiability,  §  8115. 

implied  warranty,  §  3116. 

before  delivery  to  pavee,  effect.  §  3117. 

without  recourse,  eft'ect,  §§  3118,  3119. 

gives  privity  to  contract,  §  3120. 

without  consideration,  when  binding,  §  3122. 

in  due  course,  defined,  §  3123. 

in  due  course,  rights  conferred  by,  §  3124. 

in  due  course,  of  instrument  in  blank,  §  3125. 

presentment    for    payment,    not    necessary    to 
charge  principal,  §  3130. 

how  made,  §  3131. 

Apparent  maturity  of,  defined,  §  3132. 

surrender  or  proof  of  loss,  may  be  required  on 
payment,  §  .3137. 

dishonor  defined,   §  3141. 

notice  of  dishonor,  by  whom  given,  §  3142. 

form  of  dishonor,  §  3143. 

notice  of  dishonor,  how  served,  §  3144. 


972  INDEX. 

XEGOT  ABLE  IX 1^  TKUMENT— Continued. 

liow   served  after  death   of  party   notified,    § 

3145. 
given  in  ignorance  of  death,  valid,  §  3146. 
at  what  time  given,  §  3147. 
when  to  be  mailed,  §  3148. 
agent  need  only  give  principal,  §  3149. 
time  allowed  party  receiving  to  give,  §  3150. 
taiies  effect  in  whose  favor,  §  3151. 
when  excused,  §  3155. 
presentment   and    notice    of    dishonor,   when 

excused,  §§3156,  3157. 
delay  in,  when  excused,  §  3158. 
how  waived,  §  3159. 
how  extinguished,  §  3164. 
implied  warranty  on  sale  of,  §  1774. 
duties  of  agent  employed  to  collect,  §  2021. 
NEUTER    GENDER,    included    in    masculine,    § 

14. 
NEUTRAL  PAPERS,   implied  warranty,   in  ma- 
rine insurance,  §  2688. 
NEWSPAPERS,   reports  of  public  meetings  are 

privileged,  §§  47,  48. 
NOMINAL  DAMAGES,  when  allowed,  §  3360. 
NONRESIDENT,  stock  of,  how  transferred,  §  326. 
alien  inheriting,  when  must  make  claim,  §  672. 
NOTARIES     PUBLIC,     may    take     acknowledg- 
ment or  proof  in  State,  §  1181. 
acknowledgment  or  proof  out  of  state,  §  1182. 
acknowledgment  or  proof  out  of  United  States, 

§  1183. 
offer  of  performance  made  to,  when,  §  1488. 
negotiable  instrument  presented  to,   when,    § 

3131. 
bill  of  exchange  payable  at  office  of,  when, 

§  3176. 
bill  presented  to,  Avhen,  §  3186. 
bill  protested  by,  when,  §  3226. 
protest,  how  made,  §  3227. 
making  protest,  may  give  notice,  §  3231. 
NOTE,  PROMISSORY.    See  Promissory  Note- 
NOTICE,  actual,  defined,  §  18. 
constructive,  defined,  §  18,  19. 
filing  inventory  of  wife's  property,  as,  §  166. 
to  stockholders  of  meeting  to  continue  corpo- 
rate existence,  §  287. 
of  meeting  of  corporation,  §  302. 


INDEX.  973 

NOTICE— Continued. 

of    directors    and     stockholders     to    be    given 

by  banks,  §  321. 
assessment  of  stock,  §  335. 
delinquent  assessment.    §  337-339. 
to  tenant  at  will  to  quit,  §  789. 
effect  of  such,  §  790. 
of  intention  to  re-enter,    §  791. 
not  necessary  before  action,  §  793. 
rishts  of  purchaser  for  value  without,  §§  856, 

8G9. 
record  of  conveyance,  as,  §  1207. 
record  of  instrument  as,  §  1213. 
instruments    affectino:    realty  recorded    before 

1897  as  notice,  §  1207. 
unrecorded  instrument  valid  as  between  par- 
ties with,  §  1217. 
instruments   not     avoided    against    purchaser 

with,  §  1228. 
of  appropriation  of  water,  §  1415,  1416. 
of  selection  of  one  of  several  alternatives,   § 

1449. 
of  selection  of  place  of  delivery, 
of     adverse     claim    to    deposit,    to     depositor, 

§  1825. 
depositary  must  give,  of  deposit  to  real  owner, 

§  1826. 
of  sale  of  deposit  in  danger  of  perishing,  §  1837. 
dutv    of    gratuitous    depositary    ceases    upon, 

§  1847. 
innkeeper  exempted  by  giving  certain,  §  1860. 
of  thing  found,  §  1865. 
hiring  terminated  by  what,  §  1934. 
tenant  must  give  landlord,  of  adverse  proceed- 
ing, §  1949. 
hirer  of  real  property  may  repair  after.  §  1942. 
of  personal  property  may  repair  after,  §  1957. 
certain,  terminates  employment,  §§  1996,  1999. 
of  arrival  of  freight,  to  consignee,  when,  §  2120. 
of  storage  of  freight,  to   consignee,   when,   § 

2121. 
bv  trustee,  of  acquisition  of  adverse  interests, 

§  2233. 
to  principal  or  agent,  when  deemed  to  other, 

§  2332. 
of  renunciation  of  partnership,  relieves  partner, 
§  2417. 
Civ.  Code-S2. 


974  INDEX. 

NOTICE— Continued. 

personal,  of  dissolution  of  partnership,  when 
necessary,  §  2453. 

by  change  of  name  sufRcient,  §  2454. 

of  dissolution  of  special  partnership,   §  2509. 

of  loss  under  insurance,  §  2633. 

of  loss  under  insurance,  defects  in,  how  waiv- 
ed,   §  2635. 

delay  in,  how  waived,  §  2636. 

abaudonruent  of  ship  to  insurer  by,  §  2721. 

requisites  of  such,   §  2722. 

of  transfer  of  life  insurance  policy,  not  neces- 
sary,  when,   §  2765. 

of  principal's  default,   guarantor  not  entitled 
to,  §2808. 

to  writer  of  letter  of  credit,  when  necessary, 
§  2S65. 

recording  assignment  of  mortgage  operates  as, 
§  2935. 

to   be  given  before  sale  of  pledged  property, 
§  3002. 

of  sale  of  pledged  property  may  be  waived, 
§  3003. 

to  carrier  of  depositarj^  necessary  to  stoppage 
in  transit,  §  3079. 

of  dishonor,  to  be  given  to  indorser,  §  3116. 

of  dishonor,  by  whom  given,  §  3142. 

form,  §  3143. 

how  served,  §  3144. 

how   served   after   death   of   indorser,    etc.,    § 
3145. 

given  in  ignorance  of  death,  valid,  §  3146. 

at  what  time  given,  §  3147. 

when  to  be  mailed,  §  3148. 

of  dishonor  by  agent,  need  only  be  given  to 
principal,   3149. 

of  dishonor  by  party  charged  with,  time  al- 
lowed for,  §  3150. 

of  dishonor,   inures  to  benefit    of    other 
parties,  §  3151. 

of  dishonor,  when  excused,  §§  3155,  3220. 

delay  in,  when  excused,  §  3158. 

may  be  waived,  §  3159. 

acceptor  for  honor  entitled  to,  §  3206. 

aceptance  for  honor  does  not  excuse,  §  3207. 

before     abatement     of     nuisance,    when    nec- 
essary, §  3503. 


INDEX.  975 

NOVATION,  defined.  §  15-30. 
how  made.  §  1531. 
a  contract.  §  1532. 
rescission  of,  §  1533. 
NUISANCE.    See  Abatement, 
defined,   §  3479. 
nothins:  authorized  by  statute  to  be  deemed, 

§  3482. 
liability  of  successive  owners,  §  3483. 
abatement  does  not  prejudice  claim  for  dam- 
ages, §  3484. 
Public,  defined.  §  3480. 
not  lecralized  by  lapse  of  time.  §  3490. 
remedies  against,  §  3491. 
indictment  against,  how  regulated.  §  3492. 
when  private  person  may  sue,  §  .3493. 
abated,  bv  whom  and  how,  §§,3494.  3495. 
Private,  defined,  §  3481. 
remedies  against,  §  3501. 
abated  by  whom  and  how,  §  3502. 
onlv  upon  notice,  when,  §  3503. 
NULLITY  OF  MARRIAGE,  causes  for,  §  82. 
action  to  obtain  decree  of,  §  83. 
effect  of,  on  children,  §§  84,  85. 
effect  of  judgment,    §  8G. 
NUNCUPATIVE  WILL  need  not    be    in    writing, 
§  1276. 
how  executed,  §  1288. 
requisites  to  make  valid.  §  1289. 
proof  of.    §  1290. 
probate,  §  1291. 
OATH  defined,  §  14. 

person  solemnizing  marriage  may  administer, 

§  72. 
person  taking  acknowledgment  authorized  to 
administer,  §  1201. 
OB.JECTIONS  to  offer     of     performance,     where 

made,  §  1501. 
OBLIGATION,    minor    cannot    disaffirm    certain, 
§37. 
general  rules  for  interpretation  of.  §  1423. 
defined,  §  1427. 
how  arise,  §  1428. 
rules  for  interpretation,   §  1429. 
kinds,  §  1430. 
when  joint.  §  1431. 
contribution  between  joint  parties,  §  1432. 


976  INDEX. 

OBLIGATION-Continued. 

when  couditional,  §  1434. 

coiiditiouai,  species  of,  §  1436. 

conditional,    what    done   before    enforcing,    § 
1439. 

conditional,  when  performance  excused,  §  1440. 

Avhen  conditions  Toid,  §  1441. 

involving  forfeiture,  how  interpreted,  §  1442. 

subject  of  ownership,  §  1655. 

how  far  good  consideration,  §  1606. 

implied   warranty   on   sale   of   written   execu- 
tory, §  1774. 

not  implied  from  creation  of  lien,  §   2891. 

specific  performance,  §  2384. 

transfer  of  burden,  §  1457. 

transfer  of  right,  §  1458. 

alternative,  who  has  right  of  selection,  §  1448. 

right  of  selection,  how  lost,  §  1449. 

jilternative,  indivisible,  §  1450. 

alternative,   effect  of  nullity  of  one  or  more, 
§  1451. 
Extinction  of,  by  performance,  §  1473. 

offer  of  performance,  §  1485. 

of  pecuniary  obligation,  §  1500. 

by  prevention  of  performance,  §    1511. 

when  part  performance  operates  as,  §  1524. 

by  accord.  §  1521. 

satisfaction,  §  1523. 

novation,  §  1530. 

release.  §  1542. 

by  rescission,  §  1688. 
Imposed  by  law,  to  abstain  from  injury,  §  1708. 

compensate  for  deceit,  §  1709. 

restore  thing  wrongfully  acquired,  §  1712. 

restore  thing  upon  demand,  §  1713. 

restore  thing  without  demand,  §  1713. 

compensate  for  negligence,  §  1714. 
OCCUPANCY,  property  acquired  by,  §  1000. 

title  by,   §  1006. 
OCCUl'ATiON.     See  Possession. 
ODD  FELLOWS'  ASSOCIATION  may  hold  how 

much  real  estate,  §  596. 
OFFER  to  contract,  acceptance,  how  made,  §  1582. 

to  contract,  what  deemed,  §  1584. 

must  be  absolute,   §  1585. 

revolted,  when,  §  1586. 

how  revolted,  §  1587. 

of  guaranty,  not  binding,  §  2795. 


INDEX.  977 

OFFER     OF     PERFORM  A  NCE    passes    title   to 

personal  property  under  executory  agreement 

of  sale,  §  1141. 
extinguishes  obligation,  §  1485. 
extinguishes  obligations  for  payment  of  mon- 
ey, when.  §  1500. 
partial,  §  14SG. 
by  whom  made,  §  1487. 
to  whom  made,  §  1488. 
where  made,  §  1489. 
when  made,  §  14G9,  1491. 
with  compensation  for  delay,  §  1492. 
to  be  in  good  faith,  §1493. 
must  be  unconditional,  §  1494. 
unconditional,    except   as   to   certain   cases,    § 

1498. 
party  must  be  able  to  perform,  §  1495. 
receipt  may  be  required  upon,  §  1499. 
objections  to  mode,  when  waived.  §  1501. 
thing  offered  need  not  be  produced,  §  1496. 
thing  offered  to  be  kept  separate,  §  1497. 
thing    offered,  vests  in  creditor,  §  1502. 
how  to  be  kept  by  debtor.  §  1503. 
effect  of,  on  accessories  of  obligation,  §  1504. 
what  excuses,  §  1511, 
effect  of  refusal  to  accept   performance   made 

before.  §  1515. 
lien  redeemed  by,  §  2905. 
ability   and   willingness,   when   equivalent   to, 

§  3130. 
of   concurrent   conditions,    when    necessary,    § 

1439. 
when  excused,   §  1440. 
bv  anv  person  exonerates  suretv,  §  2839. 
OFFICES   AND    OFFICERS,   office,    exercise  of, 

not  restrained  by  injunction.  §  3423. 
record  of  conveyances  by  public  officers,  p.  766, 

§  2,  Stat, 
corporation  acting  as  surety,  p.  725. 
OLOGRAPHIC  WILL  defined,  §  1277. 

need  not  be  in  writing,  §  127G. 
OPINION,  information  as  to  matters  of,  need  not 

be  given  on  insurance,  §  2570. 
OPPRESSION,    avoids    contract,    when,    §§  1567, 

15G9. 
exemplary  damages  in  case  of.  §  3294. 
interest  as  damages  in  case  of,   §  3288. 


978  INDEX. 

OPTION,  of  owner  in  confusion  of  goods,  as  to 
value  or  tliino-  itself,  §  1032. 

selection  between  alternatives,    §§  1448-1450. 

as  to  place  of  offering-  performance,  §  1489. 

as  to  delivery,  notice  of.  must  be  given,  §  1756. 

bow  waived,   §  1750. 

of  beneficiary,  in  breach  of  trust  by  trustee, 
§  2237. 

of  payee,  as  to  payment  of  negotiable  instru- 
ment, §  3090. 
ORAL  STATEMENTS.     See  Writings. 

transfer,  when  may  be  oral,  §  1052. 

nuncupative  will,  §  1276. 

what  contracts  ma^^  be  by  parol,  §  1622. 

negotiations  superseded  by  writing.  §  1625. 

contract  in  writing,  altered  by,  §  1698. 

representation  in  insurance,   §  2571. 

declarations  of  auctioneer  cannot  modify  writ- 
ten conditions  of  sale,  §  1795. 
ORPHANS.  See  Corporations,  kinds  of— Religious, 
etc. 

in  asylums,  apprenticed,  how,  §  265. 

corporations  for  maintaining  asylums,  §  286. 

adoption  of  child  from   orphan  asylum  with- 
out consent,  §  224. 

ostensible  agency.     See  Agency. 
OVERINSUFvANCE,  return  of  premium  on,  how 
made,    §  2620. 

effected  by  simultaneous  policies,  §  2621. 

by  successive  policies,  §  2622. 
OWNERSHIP,  defined,   §654. 

Avhat  subject  of,  §  655. 

wild  animals,  when  subject  of,  §  656. 

all  property  has  an  owner,  §  669. 

of  what  the  State  is  owner,  §  670. 

who  may  be  owner,  §  671. 

aliens  inheriting,  when  must  claim,  §  672. 

modification  of,  §  678. 

absolute,   §  679. 

qualified,   §  680. 

several,  §  681. 

joint,  §  683. 

in  partnership,  §  684. 

in  common,  §§  685,  686. 

conditions  of,  §  707. 

rights,  ^^  732. 

owner  of  thing,  owns  products,  §  732. 

disposition  of  income  during  suspension  of,  § 
733. 


INDEX.  979 

OWNERSHIP— Continued, 
termination.  §  7H1). 

suspension  of  absolute,  of  term  of  years.  §  770. 
of  I'ntiire  estnte   may  use  easement,   when,    § 

808. 
owner  of  dominant  tenement  mav  enforse  ease- 
ment. §  809. 
owner  of  servient  tenement  may  recover  land 

subject  to  easement,  §  810. 
ovrner  of  life  estate,  bow  may  be  used,  §  818. 
owner  of  estate  for  vears  or  at  will,  rights,  §§ 

819,  820. 

remedies  of  owner  for  injurv  to  inberitance, 

§  82G. 
owner  of  real  property.  ri.£:bts  of.  §  829. 
in     renl    nronertv    riclits    as    to    boundaries, 

§§  S.S0.  831.  ' 
in    real    property,  risrbts    to  lateral    and  sub- 

jncent  siipnort.  §  882. 
in  real  ])ropertv.  ricrlits  to  trees.  §  833. 
duties  of.   §  840. 

mutual  obligation  of  coterminous  owners.  §  841, 
controversv  as  to,  of  ship,   §  9()4. 
of  product' of  mind.  §§980.  981. 
of  trademarks  and  signs.  §  991. 
good-will  of  business,   §  992. 
title-deeds,  §  994. 
fixtures,  §  1013. 
alluvion,  §  1014. 
laud  formed  by  sudden  removal  of     bank,   § 

101.5. 
islands  in  navigable  streams,  §  1016. 
islands  in  unnavigable  streams,  §  1017. 
islands  formed  b.y  division  of  stream,  §  1018. 
things  formed  by  uniting  property  of  several 

owners,   §§  102.j,  1030. 
thing   formed    by   one   with    materials   of   an- 
other, §§  1028. 
of  thing  formed  by  uniting  materials.  §  1029. 
for  life  or  years,  effect  of  conveyance  by,  in 

excess  of  estate,  §§  1108. 
water,  how  acquired,  §  1410. 
thing  obtained  without  consent  to  be  restored, 

§  1712. 
notice  to,  of  thing  deposited,  §  1826. 
delivery  of  deposit  to  joint,  how  made,  §  1827. 
finder  of  lost  property  to  give  notice,  §  1805. 
tinder  of  lost  property  may  require  proof  of,  § 

1866. 


;)80  INDEX. 

OWNERSHIP— Coutinned. 

of  property  found,  may  exonerate  himself  from 
claim  of  finder,  §  1871. 

effect  of  insurance  by  part,  §  2590. 

titlo.     See  Title. 
PARENT  AND  CHILD,  term  "children"  includes 
what,  §  14. 

unborn  child,  for  what  purpose  deemed  exist- 
ing, §29. 

abduction  of  parent  or  child,  §  49. 

marriage  between,  incestuous,  §  59. 

child    of    annulled    marriage,   how  may   suc- 
ceed, §  84. 

child  of  annulled  marriage,  custody,  §  85. 

child  of  divorced  parents,  custody,  §  138. 

child  of  divorced  parents,  support,  §  139. 

liability  of  community  property  or  support  of 
child,  §  143. 

child  of  divorced  parents,  legitimacy,  §§  145. 

parents,   on   separating,   may  malve   provision 
for  support  of  child,  §  159. 

legitimacy  of  child  born  in  wedlocli,  §  193. 

legitimacy   of   child   born   out   of   wedlock,    § 
194. 

who  may  dispute  legitimacy,  §  195. 

obligation  for  support  and  education  of  child, 
§  190. 

custody  of  legitimate  child,  §  197. 

when    neither    parent    has    superior    right    to 
custody  of  child,  §  198. 

when  parent  may  bring  action  for  exclusive 
control  of  child,  §  199. 

custody  of  illegitimate  child,  §  200. 

allowance     to    parent   for     support     and   edu- 
cation of  child,  §  201. 

parent  cannot  control  property  of  child,  §  202. 

action  for  abuse  of  parental  authority,  §  203. 

when  parental  authority  ceases,  §  204. 

remedy  when   parent   dies  without   providing 
for  support  of  child,  §  205. 

reciprocal  duties  of,  as  regards  maintenance, 
§206. 

when   iDarent   liable   for   necessaries   supplied 
child,  §  207. 

when  parent  not  liable  for  necessaries  supplied 
child,  §  208. 

husband    not   bound   to   support   wife's   child 
by  former  marriage,  §  209. 


INDEX.  981 

PARFNT  AND  CHILD— Continued. 

compensation  and  support  of  adnlt  child,  §  210, 

parent   mar   relinquish    cnstodv    and   services 
of  child,  §  211. 

abandonment  by  parent,  §  211, 

Tvasres  of  minor,  §  212, 

ri.cht  of  parent  as  to  residence  of  child,  §  213, 

action  for  exclusive  control  of  child,  §  214. 

illesritimate  child  legitimated  by  marriage  of 
parents,   §  215. 

consent  necessary  to  adoption  of  child,  §  224. 

appointment  of  guardian,  §  241. 

con'^ent  to  apprenticeship  of  child,  §  265, 

risht   of   posthumous   child   to   take  property, 
§  698. 

birth  of  posthumous  child  defeats  certain  fu- 
ture interests,  §  7.39, 

child  born   after  T^^ill  takes  by  succession,   § 
1306, 

grandchild  of  testator  unprovided  for  by  will, 
when  succeeds,  §  1307. 

share   of  child   born   after  will,    out   of  what 
property  taken,   §  1308. 

duress   of    child     avoids   contract    of   parent, 
when,  §§  1569,  1570. 

advancement  to  child  during  lifetime  of  tes- 
tator, unprovided  for  by  will,  §  1309. 

adoption  of  children.    See  Adoption. 

adoption  of  child  from  asylum,   without  con- 
sent,   §  224. 
PAKOL.      See   Oral   Statements, 
PARTIAL  PERFORMANCE.      See  Performance; 
Specific  Performance, 

effect  of,  §  1477, 

offer  of,  void,  §  1486. 

when  extinguishes  obligation,  §  1.524. 

makes   oral   contract   of   sale   valid,   when,    § 
1741. 

effect   on   guarantor   of   principal's    accepting, 
§  2822, 

does  not  extinauish  lien,  §  2912. 
PARTIES.    See  Third  Persons. 

consent  necessary  to  marriage,  §  55. 

to  marriage,  who,  §  56. 

to  marriage,  who  may  not  be,  §  59. 

to  contract,  who.  §  1556, 

to  contract,  when  minors,  etc.,  may  be.  §  1557. 

to  contract,  must  be  capable  of  identitication, 
§  1558. 


982  INDEX. 

PARTIES— Continued. 

to   loan,   may  agree  to   any   rate   of  interest, 

§    1918. 
to   loan,   may   agree  to   compound   interest,   § 

1919. 
PARTNERSHIP,  interest,  what,  §  684. 
defined,   §  2395. 

partner  may  agree  not  to  carry  on  same  busi- 
ness in  city  or  toAvn  after  dissolution,  §  1675. 
joint  use  of  ship  does  not  create,  §  2396. 
formation.   §  2397. 
property  defined.  §  2401. 
property,  partners'  interest  in,  §    2402. 
property  applied  to  partnership  debts,  §  2405. 
lien  of  partner  on  property,  §  2405. 
property,  Avhat  presumed  to  be,  §  2406. 
profits  and  losses,  how  divided,   §  2403. 
when  aareement  for  division     of     losses   im- 

plied,  §2404. 
obligations  of  parties,  §  2410. 
parties  must  act  in  good  faith,  §  2411. 
to  account,  §  2412. 

to  serve  without  compensation.   §  2413. 
renunciation  of,  §  2417. 
effect  of  renunciation,  §  2418. 
certificate  and  publication  of  name  of  partner, 

§  2466. 

General,  defined,  §  2424.  i 

bound  by  decision  of  majority,  §  2428. 
each  partner  agent,  §  2429. 
authority  of  partners,  §  2430. 
acts  in  bad  faith  do  not  bind,  §  2431. 
profits  of  partners  belong  to,  §  2435. 
partner  not  to  engage  in  certain  business,   § 

2436. 
partner  may  engage  in  what,  §  2437. 
must  account  for  certain  profits,  §  2438. 
liability  to  third  persons,  §  2442. 
liability  for  acts  of  copartner,  §  2443. 
liability  of  one  held  out  as,  §  2444. 
who  liable.  §  2445. 
duration  of.  §  2449. 
total  dissolution,  §  2450. 
partial  dissolution,  §  2451. 
partner  entitled  to  dissolution,  §  2452. 
notice  of  termination,  §  2453. 
notice  of  withdrawal,  when  sutHcieut  to 

dissolve,    §  2454. 
notice  of  change  of  name,  §  2454. 


INDEX.  983 

PARTNERSHIP— Continued. 

powers  after  dissolution,  §  2458. 

liquidation,  who  may  act  in,  §  2459. 

who  may  not  act  in,   §  246U. 

powers  o'f  partners  acting  in,  §§  2461,  2462. 

use  of  fictitious  name  in,  §  2466. 

certificate  and  publication  of  names  of  part- 
ners,   §  2466. 

name  of  foreign,  §  2467. 

name  of  foreign,  bow  continued,   §  2468. 

certificates  of  use  of  foreign  name  to  be  filed, 
§§  2469-2471. 

change  of  interest  of,  does  not  avoid  insurance, 
§  2557. 

effect  of  insurance  by  one  of  several,  §  2590. 
Mining,  how  formed,  §§  2511,  2512. 

rights  of  members,  §§  2-513-2515. 

how  affected  by  purchase  of  interest,  §§  2516- 
2518. 

majority   of   control,    §  2520. 
Special,  how  formed,  §  2477. 

of  what  to  consist,  §  2478. 

certificate  must  be  made,  §  2479. 

certificate,  acknowledged  and  recorded,  §  2480. 

liability   of   partners   in   making   false   certifi- 
cate. §  2481. 

affidavit  as  to  sums  contributed,  §  2480. 

requisites  for  forming.  §  2482. 

certificate  published,  §  2483. 

aflidavit  of  publication  filed,  §  2484. 

renewal  of,  §  2485. 

who  may  transact  business,  §  2489. 

special  partner  may  investigate    and    advise, 
§  2490. 

may  lend  to  and  recover  from,  §  2491. 

general  parties  may  sue  and   be  sued  alone, 
§  2492. 

special    partner    must    not    withdraw    capital 
from.  §§  2493,  2495. 

may  receive  profits  from,  §  2494. 

transfer   of.    with   intent   to   prefer   creditors, 
void,  §2496.  |  ^ 

liability  of  general  partner  in,  §  2500. 

of  special  partner,  S  2501. 

of  special  partner  for  unintentional  act,  §  2502. 

who  may  question  existence  of,  §  2503. 

how  made  general.   §  2507. 
Special,  how  new  special  partners  admitted,   § 
2508.  * 


PSt  INDEX. 

PARTNERSHIP— Continued, 
dissolution.  §  2509. 

name  of  special     partner     not  used,  when,   § 
2510. 
PASSENGERS,  power  of  shipmaster  over,  §  2038. 
reasonable   accommodation  for,   §§  2103,   2180, 

21S4. 
carrier  must  carry  lug-gasre,  §  2180. 
liability  for  luggage,  §  2182. 
carrier  must  deliver  luggage,  §  2183. 
lien  on  luggage,  §  2191. 
entitled  to  seat,  §  2185. 
vrhen  fare  may  be  demanded,  §  2187. 
may  be   ejected  for  nonpayment  of  fare,    §§ 

487,  2188. 
additional  fare,  when,  §  2189. 
if  ejected,  fare  cannot  be  collected.  §  2190. 
accepting  ticket  assents  to  obligation  therein, 

§  2176. 
damasres  for  refusing  to  receive,  §  3315. 
PASTURE,  right,  a  servitude,  §801. 
PATENTS,     recorded     without    acknowledgment. 

§  1160. 
1»AYVX.     See  Pledge. 
PAWNPROKERS.     See  Pledge. 
PAYA'ENT,  defired    §1478, 

current  money,   borrower     must     repay  in,    § 

1013. 
application  of  general,  §  1479. 
application  by  debtor,  §  1479. 
application  by  creditor.  §  1479. 
application  by  law,  §1479. 

obligation,  how  extinguished  by  offer  of,  §  1500. 
effect  of  offer  of,  on  accessory    of    obligation, 

§  1504. 
of  less  than  liquidated  debt,  §  1524. 
to  agent,  §  2335. 

when  necessary  to  claim  on  indemnity,  §  2778. 
of   negotiable   instrument,    made   to   whom,    § 

3164. 
pavee  of  negotiable  instrument  must  be  ascer- 
tainable. §"^3089. 
payee's  option  as  to  class  of,  §  3090. 
of  negotinble  instrument  payable  to  fictitious 

person,  §3103. 
indorser,  when  liable  for,  to  payee,  §  3117. 
for  honor,  made  when,  §  3203. 
lor  honor,  how  made,  §  3205. 
unisJt  be  accepted,  §  3204. 


INDEX.  98& 

PAYMENT— Continued. 

how  made  in  case  of  foreiffn  bill,  §  3233. 

time  and  place,  §§  3099,  3100. 

as  performance.  See  Performance. 
PENAL    DAMAGES,    for    failure    to    quit,    after 
notice,  §  3.344. 

willful  liolding  over  by  tenant,  §  3345. 

injuries  to  trees,  etc.,  §  3346. 

injuries  infiicted  in  duel.  §§  3347,  3348. 
PENAL  LAW.   specific  relief  not  granted  to  en- 
force. §  .5369. 
PENALTY.     See  Liquidated  Damages. 

surety  not  liable  beyond,  §  2830. 

specific  relief  not  granted  to  enforce,  §  3369. 

contract   with,    may   be   specifically   enforced, 
§  3389. 

failure  of  officers  of  mining  corporation  to  post 
accounts,  p.  810.  §  3,  Stat. 
PERFORMAXCE.    See    Partial   Performance. 

when  time  for  falls  on  holiday,  §  11. 

of  precedent  conditions,  §  1110. 

of  condition  precedent,  when  necessary,  §  1439» 

when  excused,  §  1440. 

of  obligation,  §  1473. 

by  one  joint  debtor  extinguishes  liability  of 
all,  §  1474. 

to  one  joint  creditor,  §  1475. 

in  mode  directed  by  creditor,  sufficient,  §  1476. 

partial,  §  1477. 

when  called  payment,  §  1478. 

application  of  general,    §  1479. 

how  excused,  §  1511. 

effect  of  prevention,  §§  1512,  1514. 

refusal  to  accept,  before  offer,  §  1515. 

of  conditions  of  proposal,  acceptance,  §  1584. 

of  contract,  time  of,  §  1057. 

extension  of  time,  how  effected,  §  1698. 

party  offering  performance  to  be  able  and  will- 
ing,  !>  1495. 

need  not  offer  payment,  when,  §  3130. 

surety  may  compel,  by  principal.   §  2846. 

when  pledgee  must  demand,  S  3001. 

offer  of.     See  Offer  of  Performance. 
PERILS.     See  Insurance. 
PERILS  OF  THE  SEA,  defined,  §  2199. 
PERISHABLE  PROPERTY,  sale  of,  for  freight- 
age, when,  §  2204. 
Civ.    Code— S3. 


986  INDEX. 

PERPETUITIES.    See   Accommodations;   Aliena- 
tion; Trusts. 
PERSON,   delined,   §  14. 
PERSONAL  PROPERTY.     See  Property. 
PERSONAL  RELATIONS.    See  Relatives. 
PERSONAL  REPRESENTATIVES.    See  Execu- 
tors. 

of  minor,  when  may  disaffirm  contract,  §  35. 

property  of  intestate  passes  to,  §  1384. 

to  distribute  property,  how,  §  1384. 

possession  of  leii'acy  obtainable  only  from,   § 
1363. 

inventory  by  legatee  for  life,  when  delivered 
to,  §  1365. 

of  seamen,  Avhen  entitled  to  wages,  §  2062. 

by  succession.    See  Succession. 

bv  will.    See  Wills. 
PERSONAL   RIGHTS,   defined  and   regulated,   § 

43. 
PERSONS,  defined,  §  14. 

third  persons.    See  Third  Persons. 
PERSONS  OF  UNSOUND  MIND,  term  includes 
what,  §  14. 

custody,   §32. 

cannot  disaffirm  contract  for  necessaries,  §  36. 

when  cannot  contract,  §  38. 

when  may  contract,   §  39. 

contracts  subject  to  rescission,   §  39. 

powers  of.  when  incapacity  adjudged,  §  40. 

when  civilly  liable  for  wrongs,  §  41. 

not  liable  in  exemplary  damages,  §  41. 

guardianship,  §  258. 

See  Insanity. 
PETITION  of  judgment  creditor  to  have  home- 
stead appraised,   §  1245. 

such  to  be  verified,  §  1246. 

filed  with  county  cleric,  §  1247, 

copy  served  on  claimant,  §  1248. 
PEW,  as  easement.  §  801. 

as  servitude,  §  802. 
PIONEER  ASSOCIATION  may  hold  how  much 

real  estate,  §  596. 
PLACE  of  performance,  §  1489. 

where  goods  sold,  delivered,  §  1755. 

where  goods  sold,  delivered,  option,  §  1756. 

notice  of  option  as  to,  §  1756. 

where  thing  borrowed,  delivered,  §  1896. 

where  thing  deposited,  delivered,  §  1824. 


INDEX.  987 

PLACE— Continued. 

of  payment  need  not  be  stated  in  negotiable 

instrument.  §  H09I. 
at  which  negotiable  instrument  presented,   §§ 

3131.  3180.   3211. 
at  which  bill  of  exchnnge  payable,  §  3212. 
at  which  protest  made,  §  3228. 
of  payment  of  negotiable  instrument,    §  3099, 

3100. 
PLEDGE.     See  Deposit;  Depositary, 
defined,  §  2986. 
what  deemed.  §  2987. 
lien  dependent  on  possession,  §  2988. 
covers  increase  of  property,  §  2989. 
lienor  mav,  §  2990. 
factor  may  not.  §  2368. 
pledgor  must  deliver  possession  to  pledgee,   § 

2988. 
when  valid  a^rainst  real  owner,   §  2991. 
lender  definedT  §  2992. 
holder  defined,  «§  2993. 
lender  may  withdraw,  when,   §  2994. 
holder,  obligations,   §  2995. 
holder  must   enforce   all  rights  of  pledgee,    § 

2996. 
pledgee  liable  as  depositary  for  reward,  §  2997. 
holder,  gratuitous,  liable  as  gratuitous  depos- 
itary, §  2998. 
further,  when  required,  §  2999. 
sale,  when,  §  3000. 

sale  not  until  demand  made,  §  3001. 
notice  of  time  and  place  necessary,  §  3002. 
notice,  when  waived,  §  3003. 
demand,  waived,  how,  §  3004. 
auction,    §  3005. 

pledgor    may    compel    sale,    §  3007. 
evidences  of  debt  under  sale,  §  3006. 
pledgor  entitled  to  surplus,  §  3dOS. 
what  pledgee  may  retain.  §  3009. 
when  pledgee  may  purchase,  §  3010. 
foreclosure  of,  §  3011. 

mav     be     contained     in     negotiable     instru- 
ment,   §  3092. 
PLURAL  XUMBEll  includes  singular,  §  14. 

included  in  singular,  §  14. 
POLICY  OF  INSriiAXCE.    See  Insurance. 
POSSESSION,  summary  proceedings  for,  §  794. 
owner  of  in-operty  in  adverse,  may  transfer  his 

title,  §  1047. 


988  INDEX. 

POSSESSION— Continued. 

means  of  obtainin.a-.  necessary  to  gift,  §  1147. 

of  legacies,  1iot\'  obtained,  §  1363. 

damages  for  unlawful,  of  real  property,  §  3334. 

covenant  of,  implied  in  hiring,  §§  1927,  1955. 

lease,  when  renewed  by  continued,  §  1945. 

mortgagee  not  entitled  to,  §  2927. 

mortgagee,  when  may  tal^e.  of  personal  prop- 
erty, §  29G6. 

change  of,  necessary  in  pledge,  §  2988. 

transferred    for    security    deemed    pledged,    § 
2987. 

bottomry  independent  of,  §  3027. 

vendor's  lien  independent  of,  §  3046. 

seller  of  personal  property,  lien  dependent  on, 
§  3049. 

purchnser  of  real  property,  lien  independent  of, 
§  3050. 

lien  for  services  dependent  on,  §  3051. 

factor's  lien  dependent  on,  §  3053. 

banker's  lien  dependent  on,  §  3054. 

shipmaster's  lien  independent  of,  §  3055. 

seaman's  lien  independent  of,  §  3056. 

officer's  lien  dependent  on,  §  3057. 
POSSIBLE,  object  of  contract  must  be,  §  1596. 

wliat  is  deemed,  §  1597. 
POSSIBILITY,    mere,    cannot  be    transferred,    § 

1045. 
POSTHUMOUS   CHILD,   when  talces  by  succes- 
sion, §§  698,  1339. 

birth  of,  defeats  certain  future  interests,  §  739. 

deemed  living  at  death  of  parent,  §  1403. 
POST-OFFICES,  act  permitting  mail  carriers  to 

ride  free,  p.  832,  Stat. 
POWER   OF   ATTORNEY.      See  Agency. 

by  married  women,  aclvnowledged,  how,  §  1094. 

instruments  executed  under,  §  1095. 

how  revoked,   §  6216. 

duties    of    gratuitous    employee    accepting,    § 
1977. 

to  execute  mortgage,  requisites,  §  2933. 

married   woman,   power  of   attorney   of,   how 
executed,  §  1094. 
POTrERS,  minor  cannot  give,  §  33. 

person  of  unsound  mind  cannot  give,  §  40. 

married  women  may  be  vested  with,  §  714. 

power  to  sell  in  mortgage  a  part  of  security 
and  passes  on  assignment,  §  858. 


INDEX.  «S9 

POWERS— Continued. 

execution    of    power    to  several,  where  some 

dead,  §  SCO. 
of  revocation  when  deemed  executed,  §§  1229, 

1230. 
to  devise,  how  executed  by  terms  of  will,   § 

1330. 
to  executor,  to  appoint  executor,  void,  §  1372. 
of   revocation   of   trust,   mav   be   reserved   bv 

trustor,  §  2280. 
of  sale  may  be  confeiTed  by  mortc:a,<^e,  §  2932. 
PREFERENCE,     common     carrier   of     messages 

except  to  government,  §§  2207,  2208. 
giving  to  creditor,  §  3432. 
PREMIUM.     See  Insurance. 
PRESCRIPTION,  title  by,  §  1007. 
PRESI'MPTIOX.  bv  lapse  of  time  in  divorce,     § 

12.J. 
such  rebutted,  §  126. 
of  residence  in  divorce,  §  129. 
of  legitimacy.  §  193. 

of  relinquishment  of  control  of  child,  §  211. 
in   case   of   collision  from   breach   of  rules,    § 

972. 
of  time  of  delivery  of  grant,  §1055. 
that  fee-simple  title  passes.  §  1105. 
that  gift  made  in  view  of  death.  §  11.50. 
that  obligation  joint,  and  not  several,  §  1431. 
of   intent   to    extinguish   contract,    when   can- 
celed, §  1699. 
term  of  hiring  servant,  §§  2010,  2011. 
undue  influence  on  part  of  trustee.  §  2235. 
certain  property  partnership.  §  2406. 
repi'esentntion   in  insurance  refers  to  time  of 

completing  contract,  §  2577. 
insured  has  knowleclae  of  prior  loss,   §  2671. 
of  actual  loss  of  ship.^  §  2706. 
consideration  in  negotiable  instrument,  §  3104. 
bills  of  exchange  dishonored.  §  3133. 
creditor's   retention   of   part   performance   not 

voluntary,  §  1477. 
written    instrument    imports    consideration.    § 

1614. 
origin  of  uncertainty  in  contcact,  §§  1649.  1654. 
depositary  in  fault  in  certain  cases.  §  1838. 
term  for  which  real  property  hired,  §  1943. 
hiring  of  real  property  renewed.  §  1945. 


990  INDEX. 

PRESUMPTION— Continued. 

certificate    of    sliiij-niaster    in    favor    of    sailor 
true,   §  2039. 

mauagiuu-     o^'uer    of     ship     has    no    compen- 
sation, §  2072. 

damages  caused  by  conversion,  §  3336. 

adequacy  of  damage  as  relief,  §  3387. 

in  revising  contract,   that  parties   intended   a 
fair  agreement,   §  3400. 

certain  transfers,  without  possession,   fraudu- 
lent, §  3440. 

of  fraud,  how  repelled,  §  3441. 

wife,  presumption  that  property  conveyed  to, 
is  separate  property,  §  164. 

community  or  separate  property,  presumption 
as  to,  §164. 

maiTied  woman  and  others,  presumption  as  to 
propertv  convoyed  to.  §  164. 
PREVENTION   OF    PERFORMANCE,   when  ex- 
cuses performance,  §  1511. 

rights  of  debtor  in  case  of,  §§  1512,  1514. 

of  reduction  of  contract  to  writing,  §  1623. 
PREVENTIVE  RELIEF,  only  in  special  eases,  §§ 
3275,  3366. 

how  given,  §  3368. 

bv  iuiunction.    See  Injunction. 
PRICE  defined,  §  1721. 

on  failure  to  pay,  seller  may  resell  or  rescind, 
§  1749. 

when  paid,  §  1784. 

when  agent  may  receive,  §§  2325,  2326. 

of  real  property,   priority  of  mortgage  for,   § 
2898. 

of  real  property,  lien,  §  3046. 

of  personal  property,  lien,  §  3049. 
PRINCIPAL,  incident  passes  by  transfer,  §§  1084, 
3540. 

attorney  in  fact  to  subscribe  name  of,  §  1095. 

factor  must  follow  directions  of,  §  2027. 

consent  necessary  to  release  factor  from  lia- 
bility, §2030. 

in  guaranty.     See  Guaranty. 
PRINCIPAL  AND  AGENT.     See  Agency. 
PRINCIPAL  AND  SURETY.    See  Surety. 
PRINTING,  included  in  word  "writing,"  §  14. 
PRIORITY  of  record  priority  of  right,  §  1214. 

of  liens  according  to  date,  §  289T. 

mortgage  for  price  of  land  has,  §  2898. 


INDEX.  991 

PRIORITY— Continued. 

lien  upon   sinale  fund  over  lien  upon  several 

funds,   §  2S99. 
of  different  employments,  §  1988. 
of  surety's  property  over  principal's,  §  2850. 
of  bottomry  liens,  §  3029. 

bona  fide  purchaser  or  mortgagee  and  judg- 
ment creditor,  prioritv  between.  §  1214. 
PRIVILEGED  COMMUNICATIONS  enumerated, 
§47. 
reports  of  public  meeting  are  privileged  com- 
munications, §§  47,  48. 
PR0CEP:I)1NGS,  c  mmeu-  ed  prior  to  taking  effect 

of  Code  not  att'ected  by  it.  §  6. 
PROCESS,  defined.  §  14. 

serving  on  foreian  corporation,  §  403. 
PRODUCTS  OF  LAND,  owner  entitled  to.  §  732. 
tenant  for  years,  or  at  will,  entitled  to,  §  819. 
PRODUCT  OF  MIND,  subject  of  ownership.  §  655. 
to  what  degree,  §  980. 
joint  authorship.  §  981. 
transfer  of,  §  982. 
effect  of  publication,  §  983. 
rights  of  subsequent  authors,  §  984. 
private  writinas.  §  985. 
PROFIT  AND  LOSS,  shares  of  partners  in,  §  2403. 
PROFITS.    See  Community  Property. 

by  partner  belongs  to  firm,  when,  §  2435. 
special  partner  may  draw  share  of,  §  2494. 
renunciation  of  future  partnership  exonerates 

partner,  S  2417. 
insurable  interest  in,  §  2664. 
measure  of  indemnity  for  loss  of,  under  insur- 
ance, §  2738. 
loss   of,    under   insurance,    when  presumed,    § 
2440. 
PROMLSE  OF  MARRIAGE,  when  neither  bound, 
§  G2. 
damages  for  breach  of,  §  3319. 
PROMISE.     See  Contracts. 

of  adult  to  pay  necessaries  furnished  parent,  § 

206. 
false,  when  fraudulent,  §§  1572,  1710. 
representation  in  insurance  as  to  future,  §  2574. 
to  answer  for  third  person,  §  2794. 
to  accept  bill  of  exchange,  when  acceptance,  § 
3197. 
PROMISSORY    NOTE.     See    Negotiable    Instru- 
ments; Protest. 


992  INDEX. 

PKOMISSORY  NOTE— Continued, 
defined,  §  3244. 
apparent  maturity,  §  3182. 
bill  of  exchange,  when  deemed,  §  3245. 
bill  of  exchange,  when  converted  into,  §  3246. 
provisions  applicable  to,  §  3247. 
delay  in  presentment,    §3248. 
PROOF  of  consent  to  marriage,  §  57. 
of  illegitimacy,  §  195. 
of  nuncupative  will,  §  1289. 
of  destruction  or  cancellation  of  will,  §  1292. 
of  ownership,  finder  may  require,  §  1866. 
of  loss  of  freight,  §  2202. 
of  instruments   for  record.     See    Acli;nowledg- 

ments. 
of  loss  under  insurance.    See  Insurance. 
PROPEIITY.     See  Products  of  Mind, 
the  word  "property"  defined,  §  14. 
of  husband  and  wife,  may  be  used  to  support 

children.  §  143. 
of  husband  and  wife,  contracts  concerning,  § 

158. 
of  husband  and  wife,  in  joint  tenancy,  etc.,  § 

161. 
of  husband  and  wife,  rights  of,  §  177. 
community,  defined,  §  164,  687. 
community,  resort  to  for  alimony,  §  141. 
power  of  husband  over,  §  172. 
disposition  of,  on  divorce,  §§  146-148. 
distribution  on  death  of  wife,  §  1401. 
distribution  on  death  of  husband,  §  1402. 
separate,  may  be  used  for  support  of  child,  § 

143. 
of  husband,  when  liable  for  alimony,  §  141. 
separate,  of  husband,  defined,  §  163. 
of  husband,  when  not  liable  for  wife's  debts,  § 

170. 
separate,  of  wife,  defined,  §  162. 
wife  may  dispose  of  without  consent    of  hus- 
band. §  162. 
when  liable  for  support  of  husband.  §  176. 
not  liable  for  husband's  debts,  §  171. 
of  wife,  husband  cannot  select  homestead  out 

of.  §  1239. 
of  child,  parent  no  control  over,  §  202. 
when  liable  for  parent's  support,  §  201. 
corporations  may  acquire,  §  360. 
in  general.  §  654. 


INDEX. 


993 


PROPERTY— CoDtimied. 

nature  of,  §  G54. 

ownership  in,  §§  655,  678. 

either  real  or  personal,  §  657. 

real,  §  658. 

personal,  §  663. 

always  has  owner,  §  669. 

whati^  owned  by  state,  §  670. 

who  may  ovrn,  §  671. 

aliens  inheriting-,  when   must  assert  claim,   § 
672. 

interest  in,  §  678. 

interests  in,  §§  701,  702. 

interests  absolute,  §  679. 

qualified,  §  680. 

several,  §  681. 

joint,  §  683. 

partnership,  §  684. 

in  common.  §§  685,  686. 

present,  §  689. 

future  interests,  §  690. 

perpetual  interest,  §  691. 

rights  of  posthumous  children  in,  §  698. 

future  interests  pass  by  transfer,  §§  699,  700. 

future  interests  none,  unless  specified,  §  703. 

future  interests,  how  defeated,  §§  739,  740. 

when  not  defeated,  §§  741,  742. 

future  interests.  Tested,  §  694. 

future  interests,  contingent,  §  695. 

future  interests,   contingent,   may  be  alterna- 
tive, §  696. 

future  interests,  contingent,  not  void  because 
improbable,  §  697. 

interests,  perpetual,  §  691. 

interest,  limited,  §  692. 

conditional  ownership,  §  707. 

restraints  upon  alienation,  §§  711,  715,  716. 

accumulations  of  income,  §  722. 

income  of,  defined.  §  748. 

what  disposed  of  by  will,  i^§  1270,  1274. 

acquisition  of.  §§  luuo,  lOOi. 
Personal,  define,!,  §§  14,  663. 

interests  in,  are  estates,  S  701. 

recording  inventory  of  wife's,  §  165. 

transferring  contract  for  delivery  of.  §  1459. 

sale  of,  §  1739. 

seller's  lien,  §  3019. 

real  property,  when  deemed,  §  1338. 


994  INDEX. 

PROPERTY— Continued. 

sale  of  unclaimed  baggage  for  storage,  charges, 

etc.,  §18G2. 
Real,  term  includes  what,  §  14. 
what  contracts  respecting,  minor  cannot  make, 

§  33. 
defined,  §  658. 

interests,  how  denominated,  §  701. 
application  of  interests    in,  to  personal    prop- 
erty, §  702. 
limitation  on  leases  of  certain,  §§  717,  718. 
general  provisions  concerning,  §  755. 
estates  in,  §  761. 
estates  of  inheritance  in,  §  762. 
fee-simple  estates  in,  §  762. 
fee-tail  abolished,  §  763. 
contingent  remainders,  §  764. 
freehold,  §  765. 

chattels  real,  or  estates  for  years,  §  765. 
chattel  interests,  or  estates  at  will,  §  765. 
estates  for  life  of  third  person,  §  766. 
future  estates,  §  767. 
estates  in  reversion,  §  768. 
estates  in  remainder,  §  769. 
creation  of  remainders,  future  and  contingent, 

§773. 
limitation  of  successive  estates  for  life,  §  774. 
remainders  on  estate,  §§  775,  776. 
estate  for  life,  remainder  of,  §  777. 
burdens  and  servitudes,  §§  801,  802. 
rights  of  owners,  §  829. 
rights,  in  respect  to  water,  §§  818,  830. 
how  used  by  tenant  for  life,  §  818. 
how  used  by  tenant  for  years  or  at  will,  §§  819, 

820. 
remedies  of  grantees  for  rents  and  reversions 

of,  §  821. 
remedies  of  lessor  against  assigns  of  lessee,  § 

822. 
of  lessee  against  assigns  of  lessor,  §  823. 
on  leases  for  life,  for  rent,  §  824. 
rent,  how  recovered,  §§  824,  825. 
injury  to  inheritance  in.  §  826. 
boundaries  by  water,  §  830. 
boundaries  by  ways,  §  831. 
lateral  and  subjacent  support,  §  832. 
trees,  §  833. 
obligations  of  owners,  §  840. 


INDEX.  996 

PROPERTY— Continued. 

tenant  for  life,  duties,  §  840. 

coterminous  owner,  rights,  §  841. 

uses  and  trusts  in,  §  847. 

Avhen  beneficiary  has  no  interest  in,  §  863. 

when  beneficiary  may  dispose  of  his  interest,  § 

803. 
when  beneficiary  cannot  dispose  of  his  interest, 

§  8GT. 
powers  in  relation  to,  §  876. 
ownership  of  instruments  affecting  title,  §  994. 
tenant  may  remove  what  fixtures,  §  1019. 
words  of  inheritance  not  necessary  to  pass  fee, 

§  1072. 
fee-simple    title    when    presumed    to    pass,   § 

1105. 
subsequently  acquired  title  passes  by  operation 

of  law,  §  1106. 
hen  of  seller,  §  3040. 
lien  of  purchaser,  §  3050. 
when  deemed  personal,  after  testator's  death, 

§  1338. 
agreement  for  sale  of,  §§  1731-1741. 
agreement  for  sale,  what  covenants  required,  § 

1733. 
form  of  such  covenants,  §  1734. 
PROPOSAL,  to  contract,  acceptance,  §  1582. 

to  contract,  acceptance    must    be  absolute,   § 

1585. 
what  is  deemed  acceptance,  §  1584. 
qualified  acceptance,  §  1585. 
revocation  of,  §  1586. 
revocation,  how  made,  §  1587. 
PROTECTION,  against  restraint  and  injury,  etc., 

§  43. 
to  personal  relations,  §  49. 
what  force  used  in  seel^ing,  §  50. 
PROTECTIVE  ASSOCIATIONS,    act  for    forma- 
tion of,  §  2903. 
PROTESTS  of  bill  of  exchange. 

notice  of  dishonor  of  foreign  bill  only  bv  notice 

of,  §  3225. 
by  whom,  §  3226. 
how  made.  §  3227. 
where,  §  3228. 
when,  §  3229. 
how  excused,  §  3230. 


996  INDEX. 

PROTESTS— Continued 

notice  of,  liow  given,  3231. 

effect  of  waiver,  §  3232. 
PKO VISIONS,  implied  warranty  on  sale  of,  §  1775. 
riiOXY,  voting  by,  at  corporate  meetings,  §  312. 
PUBLIC,  grant    interpreted    against    grantee,    § 
1009. 

contracts  interpreted  against  private  party,  § 
1654. 

deceit  upon,  §  1711. 

nuisance,  §  3480. 
PUBLICATION,  libel  by  unprivileged,  §  45. 

privileged,  defined,  §  47. 

of  assessment  notice,  §  336. 

delinquent  assessments,  §  339. 

produce  of  mind,  effect  of,  §  983. 

notice  of  dissolution  of  partnership,  §  2453. 

of  names  of  partners,  when,  §  2466. 

change  of  name  of  partnership,  §  2469. 

certificate  of  special  partnership,  §  2483. 

aflidavit  of,  §  2484. 

notice  of  dissolution  of  special  partnership,  § 
2509. 
PUBLIC  ENEMY.    See  Enemy,  Public. 
PUBLIC  MEETINGS,  reports  of,  are    privileged 

communications,  §§  47,  48. 
PUFFING  at  auction  a  fraud,  §  1797. 
PUKCHASE,  buyer  at  auction  may  rescind,  when 
pulfing  practiced,  §  1797. 

trustee  cannot  enforce  claim  adverse  to  trust, 
obtained  by,  §  2263. 

certificates  of.     See  Certificates. 

at  sales.    See  Sales. 
PURCHASE  MONEY,  priority  of  mortgage  for,  § 
2898. 

lien  for,  §  3046. 
PURCHASER.     See  Sales. 

at  auction  sale  of  delinquent  stock,  §  342. 

when  corporation  may  be,  §  343. 

of  franchise  of  corporations,  powers  and  du- 
ties, §§  389,  390. 

heirs  of  teuant  for  life,  when  take  as,  §  779. 

resulting  trust  not  to  prejudice,  §  856. 

omission  to  declare  trust  in  conveyance,  §  8G9. 

grant,  how  far  coucltisive,  §  1107. 

instruments  void  against  subsequent,  §  1227. 

instruments  not    void   against    subsequent,   § 
1228. 


INDEX.  99T 

rURCHASER— Continued. 

grant,  by  person  having  power  of  revocation 

oi)erates  as  revocation,  wlien,  §  1229. 
rights  of,  from  devisee,  §  13G4. 
when  sale  of  personal  property  void  against,  § 

3440. 
•when    mortgage    of    personal    property    void 

against  subsequent,  §  3440. 
pledgee  cannot  be,  from  pledgor,  except  by  di- 
rect dealing,  §  3010. 
of  real  property,  lien,  §  3050. 
transfers  void  against,  §  3440. 
lien  of  seller  or  buyer  not  valid  against  subse- 
quent, §  3048. 
QUALITY,   implied  warranty    of  goods    sold  by 

sample,  §  17G6. 
implied  warranty  on  executory  sale,  §  17G7. 
implied  warranty    by  manufacturer,    §§  1TG8- 

1770. 
of  goods  inaccessible  to  buyer,  §  1771. 
general  warranty  of,  §  1773. 
domestic  provisions,  §  1776. 
damaces  for  breach  of  warranty  of,  §  3313. 
QUANTITY,  implied  M'arranty  as  to,  §  1773. 
QUESTIONS  OF  LAW  AND  FACT,  actual  fraud, 

a  (luestion  of  fact,  §  1574. 
QUIET  ENJOYMENT,  covenant  runs  with  land.  § 

1463. 
executory  contract  of  sale  binds  seller  to  insert 

covenant  of,  §  1733 
implied  in  hiring,  §§  1927,  1955. 
RAILROADS,     may     borrow     money     and    issue 

bonds,  §  4.56. 
act  to  enable  completion  of  roads,  p.  819,  Stat, 
foreign  may  operate  in  this  State,  p.  820,  Stat, 
corporations  to  operate    roads,    when,    p.  821, 

Stat, 
rates  of  fare  on  street,  p.  829,  Stat, 
time  for  commencement    and    completion    of 

work,  §  502. 
time  for  completion,  extension  of,  §  502. 
act  limiting  time  within  which   extension  to 

railroad  may  be  granted,  p.  831,  Stat, 
act  authorizing  railroad  to  use  electricity  or 

steam,  p.  830,  Stat. 
act  providing  for  sale  of  franchises  to  highest 

bidder,  p.  812-814,  Stat. 
Civ.    Code— 84. 


998  INDEX. 

RAILROADS— Continued. 

act  permitting  mail  carriers  to  ride  free,  p.  832, 

Stat, 
act  allowing  all  railway  corporations  to  do  bus- 
iness on  equal  terms,  p.  820,  Stat, 
act  limiting  time  within  which  franchise  may 

be  granted,  p.  831,  Stat, 
act  validating  grant    of  franchises    to  propel 

cars  by  electricity,  p.  818,  §  1,  Stat, 
authorizing  railroad  to  lease  its  road  to  an- 
other corporation,  p.  820,  §  2,  Stat, 
act  compelling  railroads  to  operate  roads,  p. 

821.  Stat, 
railroad,    when  deemed  in  operation,    p.  821, 

§  1,  Stat, 
prevention  of  operation,  p.  822,  §  2,  Stat, 
operation  of  roads  over  certain  elevation,  p. 

821.  Stat. 
RAILROAD  COMMISSIONERS,  act  creating,  p. 

823,      Stat, 
board,  what  constitutes,  p.  823,  §  1,  Stat. 
sessions  of  board,  p.  825,  §  5,  Stat, 
secretary  and  bailiff,  powers  of,  p.  826,   §  8, 

Stat, 
secretary  and  bailiff,  salaries  of,  p.  829,  §  15, 

Stat, 
expenses  and  salaries,  p.  823,  §  2,  p.  829,  §  15, 

Stat, 
location  of  office,  p.  825,  §  5,Stat. 
commissions,  duty  to  examine    as  to  Avhether 

income  sufficient  to  operate,  p.  822,  §  3  Stat. 
act  to  organize  and  define  powers  of  board,  p. 

823.  Stat. 
extra  counsel,  power  to  hire,  p.  824,  §  4,  Stat. 
rates,  p.  827.  §  11,  Stat, 
power  to  carry  acts  into  effect,  p.  828,   §  12, 

Stat, 
process  and  subpoenas,  issuance  of,  p.  826,  §  7, 

Stat, 
suit  upon  decision,  when  may  be  brought,  p. 

826,  5  10,  Stat, 
transportation  companies,  definition  of,  p.  828, 

§  14.  Stat, 
companies,  p.  828,  §  14,  Stat, 
complaints  and  decisions,  p.  826,  §  9,  Stat, 
demand  from  transportation  commissioner,  p. 

828,  5  13,  Stat, 
duty  of  Attorney  General  and  District  Attor- 
ney, p.  824,  §  4. 


INDEX.  999 

RAILROAD   COMMISSIONERS— Continued, 
free  passes,  p.  824,  §  3. 
seal.  p.  825.  §  6.  Stat. 
RAILROAD     CORPORATIONS.       See     Corpora- 
tions. 
RANSOM  of  ship  and  cargo.  §  2380. 
RATE  OF  INTEREST,  street  railroad,  §  501. 
supervisors  to  fix  water,  for  irrigation,  §  1422. 
annual.  §  191G. 
legal,  §§  1917,  1918. 
on  judgments.  §  1920. 
bottomry,  §  3022. 
respondentia,  §  3039. 
RATIFICATION  of  voidable  contract,  vrhen  void^ 
§§  1588.  2310. 
partial,  when  total,  §  2311. 
when  void,  §  2.312. 

to  prejudice  of  third  person  forbidden,  §  2313. 
rescission,  §  2314. 
REAL  ESTATE,  defined.  S  14. 
brokers'  authority.  §  1624. 
as  property.     See  Property. 
REASON  ceasing,  rule  should  cease.  §  3510. 

being  the  same,  rule  the  same.  §  3511. 
RECEIPTS,  partv  performing  obligation  entitled 
to  written,  §  1499. 
In  policy  of  insurance.  §  2598. 
warehouse  and  wharfingers,  act  concerning,  § 
1855- 
RECEIVER  to  enforce  alimony,  §  140. 
RECONVEYANCE,  cancellation  or  redelivery  of 
grant,  no,  §  1058. 
by  grantee  on    nonperformance    of  conditions 
subsequent.  §  1109. 
RECORDER,  certificate  of  marriage  filed  with,  § 
74. 
declaration  of  marriage  filed  with,  §  77. 
inventory  of  wife's  property  filed  with,  §  165. 
to  keep  books  for  recording  semi-annual  state-^ 

ments  of  banks.  §  321. 
fees  for  recording  bank  statements,  §  321. 
selection  of  right  of  way  by  corporation  trans- 
mitted to,  §  371. 
city  or  county,  may  take  acknowledgment  of 

instruments,  §  1181. 
instruments  recorded  in  office  of  county,  §  1169. 
duties  of  county.  §  1172. 


1000  INDEX. 

RECORDER— Continued. 

certitieate  of  formation  of  special  partnership 
filed  with,  §  2480. 

notice  of  di?:solution  of  special  partnership  filed 
with,  §  2509. 

entry  of  satisfaction  of  mortgage  made  in  pres- 
ence of,  §  2940. 

personal  mortgaj?e  recorded  with  what,  §  2959. 
RECORDING,  marriage  certificate,  §  74. 

marriage  declaration,  §  75. 

inventory  of  wife's  separate  property,  §  165. 

effect  of,  §  166. 

marriaue  settlements,  §  179. 

effect  of,  §  180. 

by-laws  of  corporation,  §  304. 

of  semi-annual  statements  of  banks,  §  321. 

of  conveyances  made  by  public  officers,  §  1095. 

what  subject  to,  §  1158. 

judgments  subject  to  without  acknowledging, 
§§  1159,  1204. 

letters  patent  without  acknowledgment,  §  1160. 

prerequisites,  §  1161. 

how  effected,  §  1102. 

transfers  in  trust  for  benefit  of  creditors,  § 
1164. 

in  what  oflice  made,  §  1169. 

when  complete,  §  1170. 

hooks,  §  1171. 

duties  of  otficer,  §  1172. 

transfers  of  ships,  §  1173. 

legality  of  prior,  not  affected,  §  1205. 

as  evidence,  §  1206. 

as  notice,  §  1207. 

where  and  to  whom  notice,  §  1213. 

priority  of.  establishes  priority  of  right,  §  1214. 

of  revocation  of  power,  §  1216. 

effect  of  Avant  of,  §  1217. 

instruments  affecting  homesteads,  §  1244. 

homestead  declaration,  §§  1264,  1268. 

notice  of  appropriation  of  water,  §§  1415. 

certificate  of  formation-  of  special  partnership, 
§  2480. 

renewal  of  special  partnership,  §  2485. 

dissolution  of  special  partnership,  §  2509. 

power  of  attorney  to  execute  mortgage,  §  2933. 

assignment  of  mortgage,  §  2934. 

effect,  §  2935. 

satisfaction  of  mortgage,  §§  2940,  2941. 


INDEX.  1001 

RECORDING— ContimiPd. 

mortgages  in  jreneral,  §§  2952,  2903. 
mort,2:a,2:e  of  personal  property,  §  2959. 
morteage  of  property    of    common    carrier,   § 

29()1. 
single  mortgages  of  personal  property,  §  29G2. 
mortgage  of  property  in  transit,  §  29(30. 
bona   fide   purchaser   of   mortgagee,   rights  as 

against  judgment  creditor,  §  1214. 
recra-d  of  conveyances  bv  persons  whose  names 

changed,  p.  766,  §  3,  Stat, 
record  of  conveyances  by  public  officers,  p.  765, 

§  2,  Stat, 
affidavits  sliowiug  work  or  posting  of  notices 

on  miuinu-  claims  may  be  recorded.  §  1159. 
act  validating  record  of  notices  of  location  of 

mining  claims,  §  1159. 
instruments  affectinc:  realty    recorded    before 

1897  as  notice,  §  1207. 
certified  copy  of  recorded  instruments  may  be 

recorded  in  other  counties,  §  1213. 
eertitied  copv,  record  of  is  notice,  §  1213. 
RECORDS  of  bank  statements,  §  321. 
RECRIMINATION.     See  Divorce. 
REDELIVERY  of    grant    does  not    retransfer,  § 

1058. 
REDEMPTION  of  franchise  by  corporation.  §  392. 
of  person  having  interest  in  property  subject  to 

lien,  §  2903. 
of  inferior  lienor,  §  2904. 
how  made,  §  2905. 
contract  in  restraint  of,  void,  §  2889. 
riglit  of  foreclosed,  §§  2931,  2907. 
RE-ENTRY  right,  Avhen  and  how  exercised,  §§  790, 
791. 
right,  transferable,  §  1040. 
REFEREE,  testimony  in  divorce  cases  before,  § 

130. 
REFORMATION  OF  CONTRACT.     See  Revision. 
REGISTRATION.    See  Recording. 
REINSURANCE  defined,  §  2040. 
what  communicated  on.  §  2047. 
presumed  against  liability,  §  2048. 
oriiiinal  insured  no  interest  in,  §  2049. 
RELATIONSHIP.    See  Kindred  Relatives. 

husband  and  wife  cannot  impair  legal,  §  159. 
degrees,  how  computed,  §§  lo89-lo93. 


1002  INDEX. 

KELATIONSHIP— Continued. 

of  half-blood,  ri.c;ht  to  succeed,  §  1394. 

succession  throuiih  illej2:itimate,  when.  1388. 
KELATIV^ES,  right  of  defense  of,  §§  43,  50. 

may  protect  child  from  parental  abuse,  §  203. 

legacies  to,  when  chargeable  with  debts  of  tes- 
tator. §  13()1. 

when  illegitimate,  taken  by  succession,  §  1388. 

of  half-blood  succeed  alike  with  whole  blood,  § 
1394. 

alienage  of,  does  not  affect  right  of  succession, 
§  1404. 
RELEASE  of  future  interests,  §  G99. 

of  debtor  by  substitution,  §  1531. 

by  creditor,  how  made,  §  1541. 

effect  of  general,  §  1542. 

of  joint  debtors,  §  1543. 
RELIEF.     See  Damages;  Injunctions. 

in  general,  §  3274. 

compensatory,  §  3274. 

specific,   and    preventive,    limited    to    special 
cases,  §  33G9. 

from  forfeiture,  §  3369. 
RELIGIOUS,      SOCIAL      AND     BENEVOLENT 
CORrORATlONS.     See  Corporations,  Kinds 
of. 

marriage  between  persons  of  particular  reli- 
gious belief,  how  solemnized,  §  79i/>. 
RE:mAINDEKS.    See  Reversion. 

defined,  §  7(39. 

certain,  valid,  §  7G4. 

contingent,  on  prior  remainder  in  fee,  §  772. 

when  created,  §  7<3. 

upon  successive  estates  for  life,  §  775. 

on  term  of  years,  §  77G. 

for  life  upon  term  of  years,  §  777. 

upon  contingency,  §  778. 

what  title  vests  under,  §  779. 

construction,  §  780. 

owner  may  sue  for  injury  to  inheritance,  §  828. 

death  of  devisee  before  testator,  §  1344. 
REMOVAL,  of  guardian,  §  253. 

officer  of  corporation,  §  310. 

thing  bought,  after  delivery,  §  1784, 

of  trustee  for  holding  adverse  interests,  §  2232. 

of  principal  in  guaranty  from  State,  §  2802. 

of  mortgaged  personal  property,  §§  29G5,  2966. 


INDEX.  1008 

RENT.    See  Landlord  and  Tenant. 

riffht  of  taking,  as  servitude,  §  802. 

remedies  for  recovery  of,  §  821. 

remedies  by  assiirnees,  §§  822,  823. 

under  lease  for  life,  §  824. 

dependent  on  life,  when  recoverable.  §  825. 

payment  to  grantor,  when  binding  on  grantee, 
§  1111. 

covenant  for  payment  rnns  witli  land.  §  14G3. 

term  of  hiring  indicated  by,  §  1944. 

acceptance,  when  renewal  of  lease,  §  1945. 

when  payable,  §  1947. 

forfeited"  bv  lettini?  room  in  parts,  §  1950. 
RENUNCIATION,  of  partnership  exonerates  part- 
ner, when.  §  2417. 

of  partnership,  effect,  §  2418. 
REPAIR,  owner  of  estate  for  life  to,  §  840. 

tenant  for  life  to,  fence,  §  840. 

coterminous  owners  to,  fence,  §  841. 

owner  for  voyage  to,  ship,  §  9()."). 

borrower,  when  to  repair,  §  1889. 

hirer  to  repair,  when,  §  1929. 

landlord,  when,  §  1941. 

tenant,  at  expense  of  landlord,  when,  §  1942. 

lettpr  of  personal  property,  §  1955. 

hirer  of  personal  propertv,  at  expense  of  letter, 
§  1956. 

ship-master.  §  2376. 
REPEAL,  of  former  statutes,  §  20. 

by  implication,  §  5,  note. 
REPORTS,  official  proceedings,  privileged,  §  47. 

of  railroad  companies,  §  491. 

appraisers  of  homestead,  §  1252. 
REPRESENTATION,  who  succeed  by  right  of,  § 
1403. 

authority  of  agent  to  make,  §  2319. 

in  insurance.     See  Insurance. 
RESCISSION,  by  minor,  §  35. 

by  person  not  entirely  without  understanding, 
§  39. 

of  novation,  §  1533. 

third  person  may  enforce    contract    before,  8 
1559. 

consent  not  free,  subject  to,  §  1506. 

extinguishes  contract,  §  1688. 

of  contract,  in  wliat  cases  allowed,  §  1689. 

not  barred  by  stipulation.  §  1690. 

how  effected,  §  1691. 

of  sale  for  nonpayment  of  price,  §  1749. 


1004  INDEX. 

KESCISSION— Continnefl. 

by  buyer,  if  seller  refuses  inspection,  §  1785, 

by  bnyer,  on  brench  of  Trarranty,  §  1786. 

by  bnyer  at  auction,  when,  §  1797. 

of  ratification,  §  2314. 

of  insurance  for  concealment,  when,   §§  2562, 
2569. 

of  insurance  for  false  representation,  when,  § 
2580. 

of  insurance,  when  exercised,  §  2.583. 

for  violation  of  warranty,  etc.,  §  2608. 

for  fraudulent  valuation,  §  2736. 

for  alteration  increasing  risk,  §  2753. 

of   alteration    of   obligation   does   not   restore 
guaranty,  §  2821. 

stoppage  in  transit  is  not,  §  3080. 

of  contracts,  when  adjudged,  §  3406. 

for  mistake,  §  3407. 

requirements  on  adjudging,  §  3408. 
RESIDENCE,  husband  to  select,  §§  103,  156. 

if  husband  selects  unfit,  wife  not  bound,  §  104. 

guardian  to  select,  §  248. 

requisites  in  regard  to,  in  divorce,  §  128. 

proof  of  actual,  required  in  divorce,  §  129. 

right  of  parent  as  regards,  of  child,  §  213. 
RESIDUE,  remainder  on,  §  775 

of  testator's  estate,  devise  of,  §  1832. 

of  testator's  estate,  bequest  of,  §  1333. 
RESrONDENTIA.    See  Bottomry. 

defined,  §  3036. 

owner  may  hypothecate  by,  §  3037. 

master  may  hypothecate,  when,  §  3038. 

law  of  bottomry  applicable  to,  §  3039. 

obligation  imposed  upon  shipowner  by,  §  3040. 
RESTORATION,  necessary    on  rescission    of  con- 
tract, §  1691. 

of  thing  wrongfully  obtained,  §§  1712,  1713. 

of  deposit,  terminates  duties    of   depositary,  § 
1847. 

of  thing  found,  §  1871. 

lien  extinguished  by,  §  2913. 
RESTRAINT,  right  of  protection  from  bodily,  §  43. 

of  marriage,  when  void,  §§  710,  1676. 

of  alienation,  when  void,  §§  711,  716.  i 

of  trade,  contract  when  void,  §  1673.  -; 

of  trade,  on  sale  of  goodwill,  §  1674. 

of  trade,  on  dissolution  of  partnership,  §  1675. 


INDEX.  1005 

RESTRAINT- Continued. 

of  ricrlit  of  redemption  from  lien,  not  allowed, 
§  2889. 
RETROACTIVE,  Codes  not.  §§  3,  6. 
RETURN,  of  appraisers  of  homestead,  §  1252. 
when  excused.  §  2G18. 

of  preminiii  of  insurance,  when,  §§  2617,  2621. 
REVERSION.    See  Remainder. 

of  land  granted  to  corporations,  §  477. 
estate  in,  defined,  §  768. 

owner  may  sue  for  injury  to  inheritance,  §  826. 
REVISION,  of  contracts,  when  may  be  revived,  § 
8309. 
presumption  as  to  intent  of  parties,  §  3400. 
principles  of,  §  3401. 
specific  enforcement  after,  §  3402. 
REVOCATION,  consent  to  separation  subject  to,  § 
101. 
of  condonation,  §  121. 
of  gift  in  view  of  death,  §  1151. 
of  power  of  attorney,  §  1216. 
power  of,  M'hen  deemed  executed,  §§  1229,  1230. 
of  propos.nl  to  contract,  §  1586. 
of  proposal  to  contract,  when,  §  1587. 
of  trust,  §  2280. 
of  continuing  m 
of  wills.     See  Wills. 
RIGHT  OF  WAY,  granted  to  corporations,  §  474. 
limitation,  §  475. 
selection,  how  certified  to,  §  478. 
as  easement,   §  801. 
as  servitude,  §  802. 
RIGHTS,  accrued    prior   to  Code    not  affected,  § 
620. 
person  of  unsound  mind  cannot  waive,  §  40. 
minor  may  enforce  by  civil  action,  §  42. 
of  personal  relation,  §  49. 
subject  of  ownership,  §  655. 
in  water,  §  1410. 
may  be  waived,  §  3513. 
must  not  be  used  injuriously,  §  3514. 
RIOT,  involuntary  deposit  in  case  of,  §  1815. 

duty  of  depositary,  §  1816. 
RISKS,  insured  against,  to  be  stated,  §  2587. 

altering  thing  covered  by  lire  insurance,  in- 
creasing. §  2753. 
altering  thing  not  increasing,  §  2754. 
what  insured  against  in  marine  insurance,   § 
2655. 


1006  INDEX. 

RISKS— Continned. 

stipulation  of  personal  liability  under  bottomry 
independent  of.  void,  §  3024. 
RIVERS,  navigable.     See  Water. 
SAILORS.     See  Seamen. 
SALE.    See  Price;  Purchaser;  Transfer, 
stock  for  delinquent  assessments.  §  341. 

when  corporations  may  purchase  stock,  §  343. 

franchise  of  corporations  under  executions,   § 

388. 
sale  of  franchise  not  to  affect  powers  of,  of  cor- 
porations, §  391. 

transfer  of  personal  property  by,  §  1136. 

title  to  personal  property  passes  by,  §§  1140, 
1142. 

of  homestead  on  execution,  §§  1254,  1256. 

seller  of  goodwill  may  agree  not  to  carry  on 
j?ame  business,  §  1674. 

defined,  §  1721. 

subject  of.  must  be  what,  §  1722. 

sellor  in  executory  contract  to  insert  certain 
covenants,  §  1734. 

rights  and  obligations  of  seller,  §  1748. 

seller  as  depositary  before  delivery.  §  1748. 

in  respect  to  resale  or  rescission,  §  1749. 

when  buyer  to  pay  price.  §  1784. 

when  buyer  to  remove  thing,  §  1784. 

right  of  buyer  to  inspect  warranted  goods,   § 
1785. 

right  of  buyer  on  breach  of  warranty,  §  1786. 

of  deposit  in  dansrer  of  perishing,  §  1837. 

of  thing  found,  §§  1809,  1870. 

by  factor  for  reimbursement,  §  2027. 

on  credit  by  factor,  §  2028. 

liability  of  factor  upon,  under  guaranty  com- 
mission, §  2029. 

of  perishable  property  for  freightage,  §  2204. 

of  delinquent  mining  property,  §  2520. 

extinction  of  lien  by.  §  2910. 

power  conferred  by  mortgage,  §  2926. 

power  under  mortgage,  how  executed,  §  2927. 

of  pledged  property  by  pledaee,  §§  3000-3002. 

of  pledged  property  by  auction,  §  3005. 

on  demand  of  pledgor,  §  3007, 

surplus,  to  whom  paid.  S§  3008,  3009. 

judicial,  of  pledged  property,  §  3011. 

of  real  property,  lien  of  vendor,  §  3047. 

when  deemed  waived,  §  3047. 


INDEX.  1007 

SALE— Continued. 

extent  of  lien  of  vendor    of  real    property,   § 
3049. 

seller  of  personal  property,  §  3049. 

rescission  of,  not  affected  bj'"  stoppage   in  tran- 
sit. §  3080. 
Ascreement  for.  defined,  §  1726. 

to  sell,  §  1727. 

to  buy,  §  1728. 

To  sell  and  buy.  §  1729. 

^vhat  subject  of,  §  1730. 

of  real  property,  §§  1731.  1733,  1734,  1741. 

of  personal  property,  §  1739. 

to  be  in  writing  or  partially  performed,  §  1741. 

not  revocation  of  will.  §  1301. 
By  auction  defined,  §  1792. 

when  complete.  §  1793. 

withdrawal  of  bid,  §  1794. 

written  conditions  not  to  be  modified,  §  1795. 

when  absolute,  §  179G. 

by-bidding  a  fraud,  §  1797. 

auctioneer's  memorandum  binding,  §  1798. 

authority  of  auctioneer  from  seller,  §  2362. 
Delivery  on  demand,  §  1753. 

where  made,  §  1754. 

expense  of  transportation,  §  1755. 

when  made,  §  1758. 

notice  of  election,  §  1756. 

must  follow  directions  of  buyer,  §  1757. 
Delivery,  of  personal  property,  §  1759. 

change  of  possession  not  necessary  on  sale  of 
wine  in  winery,  §  3440. 

transfer  of  wines  in  winery,  how  made,  §  3440. 
Warranty  defined,  §  1763. 

not  implied,  §  1704. 

of  title  to  personal  property,  §  1765. 

on  sale  by  sample,  §  17G(). 

of  merchandise  not  in  existence,  §  1768. 

of  manufacture  against  latent  defects,  §  1769. 

of  manufacture  for  particular  purposes,  §  1770. 

when  thing  cannot  be  examined  by  buyer,   § 
1771. 

of  trademarks,  §  1772. 

other  marlvs,  §  1773. 

on  sale  of  written  instrument,  §  1774. 

of  provisions  for  domestic  use,  §  1775. 

on  sale  ol  goodwill,  §  1776. 


1008  INDEX. 

SALE— Continned. 

on  .indicia!  sale,  §  1777. 
effect  of  .c:eneral  warranty,  §  1778. 
SALVAGE,  in  case  of  captnre,  deduction  from  sea- 
men's T^^ases  for,  §  20G(). 
who  entitled  to,  §§  2079.  2725. 
SA^rPLE,  sales  by,  §  1766. 
SATISP\1CTI0N.    See  Accord. 

of  .indsment  a.a-aiust  corporations,  §  388. 
of  'jiid2:ment  against  homestead,  1241. 
of  iesacies  and  gifts,  §  1367. 
what  operates  as,  §§  1523.  1524. 
of  recorded  mortgage,  §§  2938.  2941. 
penalty  for  refusing,  of  mortcrage.  §  2941. 
SAVINGS  AND    LOAN    CORPORATIONS.     See 

Corporations,  Kinds  of. 
SAVINGS  BANK,  deposits  in,  may  be  collected  by 

surviving  husband,  or  wife,  when,  §  579. 
SCHOOLS.    See  Colleges. 
SEA,  perils  of,  defined,  §  2199. 

carrier  not  liable  for  damages  caused  by  perils 
of,  §  2107. 
SEAL  of  officer  taking  proof  or  acknowledgment, 
§  1193. 
corporate,  or  official,  how  affixed,  §  1628. 
private,  abolished,  §  1629. 
SEAMEN.     See  Ships  and  Shipping. 

may  make  nuncupative  will,  Avhen,  §  1289. 

power  of  shipmaster  over,  §  2037. 

defined,  §  2049. 

how  engaged,  §  2050. 

how  discharged,  §  2050. 

cannot  be  compelled  to  ship    on  unseaworthy 

vessel,  §  2051. 
wages  of,  not  lost  by  agreement,  §  2051. 
restrictions  on  contracts  M'ith,  §  2053. 
wages,  when  depend  on  freightage,  §  2054. 
wages,  when  begin,  §  2055. 
where  voyage  broken  up,  §  2056. 
when  wrongfully  discharged,  2057. 
wages,  when  do  not  depend  on  freightage,   § 

not  lost  by  wreck,  §  2058. 

when  prevented  from  rendering  service,  §  2060. 

must  be  provided  for  in  sickness,  §  2061. 

when  personal  representatives  take,  §  2062. 

when  forfeited,  §  2063. 

liability  of,  for  injury  to  ship,  §  2063. 


INDEX.  1009 

SEAMEN— Continued. 

must  not  ship  goods  on  own  account,  §  2064. 

lieu  of,  §  3056. 
SEAWORTHINESS,  seamen    not    bound    to  sail 
when  reasonable  doubt  as  to,  §  2051. 

defined,  §  26S2. 

implied  warranty  of,  in  insurance.  §  2681. 

at  what  time  must    exist,  under    insurance,  § 
2683. 

what  required  to  constitute,  §  2684. 

degrees  of,  during  voyage,  §  26S5. 

for  purpose  of  insuring  cargo,  §  2687. 
SECRETARY  OF  STATE,  proceedings  for  contin- 
uance of  corporations,  §  287. 

prerequisites  before  issuing  certificate  of  incor- 
poration, §  295. 

when  must  issue  certificate  of  incorporation,  § 
296. 
SECURITY  for  alimony,  §  140. 

power  to  sell  in  mortgage  deemed  part  of,   § 
858. 

contracts  of,  when  called  bail,  §  2780. 

held  by  creditor  or  cosurety,  surety  entitled  to 
benefit  of,  §  2849. 

held  by  surety,  creditor  entitled  to  benefit  of,  § 
2854. 

by  way  of  lien  (see  also  Lien),  §  2872. 

for  what  lien  may  be,  §  2884. 

for  obligatioti,  does  not  prevent  direct  enforce- 
ment, §  2890. 

of  mortgagee  not  impaired  by  person  bound,  § 
2929. 

by  way  of  pledge.    See  Pledge. 

for  third  person,  pledge  as,  §  2992. 

by  way  of  bottomry  (see  also  Bottomry),  §  3017. 

by  way  of  respondentia  (see  also  Respondentia) 
§  3U36. 

indorser  having,  not  entitled  to  notice  of  dis- 
honor, §  3157. 

by  assignee,  for  benefit  of  creditors,  §  3467. 
SEDUCTION,  protection  from,  §  49. 

damages  for,  §  3339. 
SELECTION.     See  Option. 
SELF-DEFENSE,  right  of,  §  43. 
SELLER.     See  Sales. 
SEPARATION,  by  consent,  not  desertion,  §  99. 

and  intent  to  desert,  not  always  coexist,  §  100. 

consent  to,  revocable,  §  101. 
Civ.   Code— b5. 


1010  IXDEX. 

SEPARATION— Continued. 

husband  and  wile  may  asjree  to  immediate,  § 

159. 
mutnal  oons-ent  sufficient  consideration,  §  160. 
custody  of  child  in  case  of.  §  214. 
SERYANT.     See  :\Inster  and  Servant. 
SERVICES.     See  Waces. 

of  leiiitimate  unmarried  minor,  father  entitled 

to.  §  197. 
of   illegitimate   unmarried   minor,    mother   en- 
titled to,  §  200. 
parent  may  relinquish,  of  child,  §  211. 
when  apprentice  mav  recover  for,  §  276. 
of  depositary,  §  1839. 
employee  in  .uratuitous  duties,  §  1975. 
gratuitous,  when  relin(iuished,  §  1976. 
without  employment,  §§  2028,  2079. 
of  carrier,  other  than  carriage,  §  2203. 
contract  for,  cannot  be  specifically  enforced,  § 
3390. 
SERVIENT    TENEMENT.     See    Easements    and 

Servitudes. 
SERVITUDES.    See  Easements  and  Servitudes. 
SEVERAL  defined,  §  14. 

ownership,  §  081. 
SHERIFFS.     See  Assignments  for  the  Benefit  of 

Creditors,  §  3449. 
SHIPS  AND  SHIPPING.     See  Average;  Bottom- 
ry;   Navigation;    Carriage;    Common    Carri- 
ers; Respondentia;     Seamen;  Seaworthiness; 
Wrecl^s. 
seamen.     See  Seamen, 
defined,  §  960. 
appurtenances  of,  §  961. 
foreign,  §  962. 
domestic,  §  9(53. 

controversy  between  part  owners,  §  964. 
who  responsible  for  repair  and  supplies,  §  965. 
registry,  enrollment,  and  license,  §  966. 
collision  from  breach  of  rules,  §  971. 
losses  caused  by  collision,  how  apportioned,  § 

973. 
transfer  of  interest  in,  in  writing,  §  1135. 
recording  transfer,  where  provided  for,  §  1173. 
charter-party  defined  and  regulated,  §  1959. 
when  not  seaworthy,  seamen  need  not  sail,  § 
2051. 


INDEX.  1011 

SHIPS  AND   SHIPPIX(^— Continnetl. 

ship-master  may  procure  repairs  and  supplies, 

ij  2376. 
ship-master  may  hypothecate,  when,  §  2377. 
ship-master  may  sell.  T^'hen,  §  2378. 
abandonment    terminates     master's    power,    § 

2381. 
ship-master  personally    liable    for    what    con- 
tracts. §  2382. 
liability  ot   master  for  neslisrence  of  persons 

employed,  §  2383. 
obligation  of  ship-owner  to  owner  of  cargo.  § 

2385. 
part  owner  not  partner,  §  2396. 
seaworthiness  defined,  §  2682. 
.  laws  of  mortgage  do  not  apply  to.  §  2978. 
hypothecation  under  bottomry,  §  3017. 
lien  on,  §  3069. 
mates.     See  Mates, 
act  to  protect  buoys  and  beacons.     See  Penal 

Code,  Appendix,  title  Buoys  and  Beacons. 
Cargo,  sacrifice  for  safety  of.  §  2148. 
sacrifice  borne  ratably,  §  2151. 
jettison.     See  Jettison, 
how  yalued  on  general  average.  §  2153. 
ship-master  agent  for  owners,  §  2375. 
obligation  of  owner  to  owner  of,  §  2385. 
ship's  manager  not  power  to  purchase,  §  2389. 
seaworthiness  for  purpose  of  insuring.  §  2687. 
insurance  on,  when  yoyage  broken  up,  §  2707. 
ship-master  may  sell,  when,  §  2379. 
cariro,  ship-master  may  hypothecate,  when,  §§ 

2377,  3038. 
hy])othecation    under    respondentia,     §§    3036- 

3038. 
owner  entitled  to  repayment  from  ship-owner 

under  respondentia,  §  3040. 
insurance.     See  Insurance, 
freight.     See  Freight jmd  Freightage. 
Manager,  defined,  §  20  <0. 
duties,  §  2071. 

not  entitled  to  compensation,  when,  §  2072. 
powers,  §  2388. 
limitation  of  powers,  §  2389. 
Master,  may  be  charterer,  §  1959. 
how  appointed,  §  2034. 
must  be  on  board,  when,  §  2035. 


1012  INDEX. 

SHIPS  AND  SHIPPING— Continued.      '  ""=^'^^^"=""^' 
Master— take  pilot,  when,  §  2036. 
power  over  seamen,  §  2037. 
power  over  passengers,  §  2038. 
power  to  impress  private  stores,  §  2039. 
must  not  abandon  sliip  witliout  advice,  §  204(>. 
duties  on  abandoning  ship,  §  2041. 
when  not  trade  on  own  account,  §  2042. 
care  and  diligence,  §  2043. 
authority  to  malve  jettison,  §  2150. 
general  agent  for  owner,  §  2373. 
may  borrow  on  credit  of  owner,  §  2374. 
on  behalf  of  owner  of  cargo,  §  2375. 
power  to  malve  contracts,  §  2376. 
to  hypothecate,  §  2377. 
to  sell  ship,  §  2378. 
to  sell  cargo,  §  2379. 
authority  to  ransom  ship,  §  2380. 
power  terminates  on  abandonment  of  ship,  § 

2381. 
personal  liability  for  contract,  §  2382. 
liability  for  acts  of  persons  employed,  §  2383. 
responsibility  for  negligence  of  pilot,  §  2384. 
when  may  hypothecate  ship  under  bottomry, 

S§  3019,  3020. 
when  may  hypothecate  freightage  under  bot- 
tomry, §  3021. 
lien  of,  §  3055. 
mates,    See  Mates. 
Owners,  controversy  between,  how  determined,  § 

962. 
master  appointed  by,  §  2035. 
when  manager,  called  what,  §  2070. 
when  manager,  not  entitled  to  compensation,  § 

2072. 
ship-master  general  agent  for,  §  2373. 
ship-master  may  borrow  on  credit  of,  §  2374. 
contracts  of  ship-master  bind,  §  2376. 
ship-master  may  sell  ship  without  instructions, 

when,  §  2378. 
contract  to  ransom  ship,  by  ship-master,  binds, 

§  2380. 
power  to  bind,  ceases,  when,  §  2381. 
responsible   for   negligence   of   ship,    when,    § 

2384. 
obligation  of,  to  owner  of  cargo,  §  2385. 
ship's  manager  cannot  bind,    to  insurance,    § 

2389. 
has  insurable  interest,  §  2659. 


INDEX.  1013 

SHIPS   AND    SHIPPING— Continued. 
Owners— value  of  insurable  interest,  §  2661. 
insurable  interest  in  expected  freight,  §  2662, 
may  hypothecate  ship  upon  bottomry,  >?  3018. 
when  repjiy  owner  of  cargo  under    responden- 
tia, §  3040. 
Voyage,  owner  of  ship  for,  liable  for  repairs  and 
supplies,  §  965. 
power  of  ship-master  during,  §§  2037,  2040. 
insured,  how  determined,  §  2692. 
deviation,  defined,  §  2693. 
when  proper,  §  2695. 
when  improper,  §  2696. 
effect  of  on  insurance,  §  2697. 
SIGNATURE  defined,  §  14. 

of  officer  taking  acknowledgment,  §  1193. 
in  indorsement    of  negotiable    instrument,  §§ 
3109,  3110. 
SINGULAR  NUMBER,  includes  plural,  §  14. 
SKILL.    See  Care. 

injury  arising  from  want  of  ordinary,  §  1714. 
borrower  for  use  must  exercise  what.  §  1888. 
employee  must  use  reasonable,  §  1983. 
employee  must  use  all  he  possesses,  §  1984. 
voluntary   depositary   must   use  reasonable,    § 

2078. 
carrier  of  persons  for  reward  must  use  reason- 
able, §  2100. 
SLANDER,  defamation  effected  by,  §  44. 

defined,  §  46. 
SOCIETIES.     See  Corporations. 
SOLDIER  may  make  nuncupative  will,  §  1289. 
SOLEMNIZATION    OF    MARRIAGE.     See    Mar- 
riage. 
SPECIFIC  PERFORMANCE  of  obligations    com- 
pelled when,  §  3384. 
not  unless  mutual,  3386. 
presumption  in  favor  of,  as  to  real  property,  § 

3387. 
presumption  against,  as  to  personal  property,  § 

8388. 
enforced  in  favor  of  party  not  bound,  when.  § 

3388. 
enforced,  notwithstanding  penalty  in  contract, 

§  3389. 
not  enforced  for  personal  service.  §  3390. 
contract  to  accept  arbitration,  §  3390. 
act  which  party  cannot  perform,  §  3390, 


1014  INDEX. 

SPECIFIC  PERFORMANCE— Continued. 

agreement  to  prccnre  act  of  third  person,    § 
3390. 

indefinite  contract,  §  3390. 

party   not   having'    adequate    consideration,    § 
3391. 

party  as  to  wliom  contract  is  not  fair,  §  3391. 

party  not  freely  consenting,  §  3391. 

party  in  default,  §  3392. 

of  agreement  to  buy.  not  enforced  when  title 
doubtful,  §  3394. 

persons  claiming  under  party    bound  to  per- 
form, §  3395. 

may  be  enforced  after  revision,  §  3402. 
SPECIFIC  liELIEF,  only  in  special  cases,  §  3366. 

hoAy  given,  §  3367. 

not  given  to  enforce  penalties,  §  3369. 
SPEED,  carrier  must  travel  at  what  rate,  §  2104. 
SPORTS,  rights  of  conducting  lawful,  on  land  as 

easement,  §  801. 
STATEMENT  OF  BANKS,  what  to  be  published 

and  recorded,  §  321. 
STATFTE  OF  FRAUDS.     See  Oral  Statements. 

what  couti'acts  to  be  in  writing,  §  1624. 

sales  of  personalty,  §  1739. 

sale  of  realty,  §  1741. 

agent's   authority,    when   to   be   in   writing,    § 
2309. 
STATUTE  OF  LIMITATIONS.     See  Limitations. 
STATUTES  in  derogation  of    common    law,  how 
construed,  §  4. 

effect  of  Code  on,  §§5,  20. 

minor  cannot  disaffirm  contract  made  by  au- 
thority of  special,  §  37. 

insane  person  cannot   make  contract  without 
express  authority  of,  §  38. 

righis  granted  by,  subject  of  ownership,  §  655. 
STOCK,  amount  subscribed  before  incorporating, 
§  293. 

oath  of  officer  to  subscription  of,  §  295. 

holder  of,  defined,  §  298. 

entitled  to  how  many  votes,  §  301. 

majority  necessary  to  adoption  of  by-laws,   § 

majority  necessary  to  election,  §  307. 
two-thirds  necessary  to  amend  by-laws,  §  304. 
two-thirds  necessary  to  removal  of  officers.   § 
310. 


INDEX.  1015 

STOCK— Coiitiiiiicrl. 

maiority  constitutes  qiiornm.  §  812. 

dividends  not  ninde  from  capital.  §  309. 

debts  not  beyond  subscribed.  §  309. 

capital  not  increased  or  diminished,  except,  §§ 
309,  3r>9. 

on  dissolution,  divided.  §  309. 

boolv  and  notice  of,  hy  banlcs.  §  321. 

certificates  of,  bow  issued,  §  323. 

transfer  of,  §  324. 

transfer  of,  held  by  married  women,  §  325. 

transfer  of,  of  nonresidents,  §  326. 

hypothecated,  how  voted,  §  322. 

sale  of  delinquent,  §  341. 

jurisdiction  over,   §  340. 

may  buy  its  own.  when,  §  343. 

disposition  of,  where  corporation  purchaser,  § 
344. 

action  for  recovery  of,  sold  for  delinquent  as- 
sessments, §  347. 
STOCKHOLI^EKS.     See  Corporations. 
STOPPAGE  IN  TliAXSIT,  who  may  exercise  the 
right,  §  3070. 

transit  when  ended,  §  3078. 

how  effected,  §  3079. 

does  not  rescind  sale,  §  3080. 
STOPtAGE.     See  Deposit;   Warehousemen. 

defined,  §  1851. 

degree  of  care  required,  §  1852. 

compensation,  §  1853. 

how  terminated,  §§  1854,  1855. 

sale  of  unclaimed  baggage  for,  §  1802. 

finder  may  put  thing  on,  §  1808. 

when  carrier  may  place  freight  on,  §  2121. 
STKAXGEK,  attornment  to,  void,  §  1948. 

as  third  person.     See  Third  Person. 
ST1^EAMS.     See  Water. 

ownership  of  land  newly  formed  by,  §  1014. 

land  newly  formed  in  navigable,  §  1010. 

land  newly  formed  in  uunavigable,  §  1017. 

islands  formed  bv  division  ot,  §  1018. 
STKEAMS,  XA\TGABEE.     See  Watt'r. 
STREET     KAILKOAD     COlil'OKATlONS.       See 

Corporaiions. 
SUB  AGENT.    See  Agency. 

not  responsible  to  principal,  §  2022. 

when  agent  responsible  for,  §  2350. 

when  not,  §  2351. 


1016  INDEX. 

SUBPOENA,  acknowledgment  by  officer,  §  1201. 
SUBROGATION,  right  of  inferior  lienor  to,  §  2204. 
SUBSEQUENTLY  ACQUIRED  TITLE  passes  by 

operation  of  law,  §  1106. 
passes  by  will,  §  1312. 
SUBSTITUTES,    responsibility    of  employee    for,. 

§  1989. 
SUCCESSION,  rights  of  children  of  annulled  mar> 

riage,  §  84. 
alien,  taking  by,  when  to  assert  claim,  §  672. 
posthumous  children,  §  698. 
future  interest,  §  699. 
property  acquired  by,  §  1000. 
words  of,  unnecessary  to  pass  fee,  §  1072. 
liability  of  persons  acquiring  property  by,   § 

1115. 
child  of  testator  born  after  will  takes  by,   § 

1300. 
child  of  testator  unprovided  for  by  will  takes 

by,  when,  §  1307. 
property  of  intestate,  how  disposed  of,  §  1358. 
defined,  §  1383. 

real  and  personal  property  pass  by,  §  1384. 
to  whom  property  passes  by,  §  1384. 
distribution  of  property  received  by,  §  1386. 
illegitimate  child  takes  what,  §  1387. 
mother  of  illegitimate  child  to  take  by,  §  1388. 
computation  of  degrees  in  determining,  §§  1389, 

1393. 
exclusion  from  by  advancement,  §  1395. 
relatives  of  half-blood,  when  take,  §  1394. 
husband  takes  common  property  on  death  of 

wife,  §  1401. 
husband  and  wife,  divorced  and  in  fault,  not  to 

take  by,  §  1401. 
wife  takes  one-half  common  property  on  death 

of  husband,  §  1402. 
by  representation,  §  1403. 
aliens  may  take  by,  §  1404. 
w^hen  state  takes  by,  §§  1405,  1406. 
w^hen  State  takes  by,  subject  to  charges,  §  1407» 
persons  taking  by,  liable  for  debts  of  decedent, 

§  1408. 
change  of  interest  by,    does  not    affect    insur- 
ance, §  1556. 

See  Successors. 
SUCCESSORS,   of  decedent    may  dispute    legiti- 
macy of  issue,  §  195. 
liable  for  obligations  of  decedent,  §  1403. 


INDEX.  1017 

SUCCESSORS— Contiuued. 

in  e(iiial  degree  take  equally,  §  1394. 

of  employer,  when  must  compensate  employee, 
§  1998. 

duty  of  trustee  as  to  appointment  of,  §  2260. 
SUGGESTIONS,  false,  when  fraudulent,   §§  1572, 

1710. 
SUMMONS,   foreign   corporations,   designation   of 
person  upon  whom  process  may  be  served, 
p.  7G4,  Stat. 
SUNDAY,  a  holiday,  §§  7,  8. 
SUPERFLUITY,  does  not  vitiate,  §  3537. 
SUPERVISORS,  action  in  behalf  of  child,  for  pa- 
rental abuse,  §  203. 

provision  for  support  of  orphan  out  of  property 
of  intestate  parent,  §  205. 

consent  to  apprenticeship,  when,  §  265. 

may  bind  out  apprentices,  §  268. 

act  authorizing  supervisors  to  fix  rates  of  wa- 
ter sold  for  irrigation,  p.  843,  §  2,  Stat. 

act  limiting  time  witliin   which   extension  to 
railroad  may  be  granted,  p.  831,  Stat. 

misdemeanor,   supervisor  violating   statute   as 
to  sale  of  franchise,  p.  814,  §  2,  Stat. 

act  limiting  time  within  which  franchise  may 
be  granted,  p.  831,  Stat. 

franchise  for  underground  or  elevated  railroad, 
petition  for,  §  492. 

may  srant  franchise  for  uuderirround  or  ele- 
vated railroad,  §  492. 
SUPPORT  TO  LAND,  right  of  more  than  naturaJ. 
as  easement,  §  801. 

right  to  lateral  and  subjacent,  S  832. 
SURETY.    See  Security. 

contribution.    See  Contribution. 

Incorporations  for  giving  bonds,  p.  725,  Stat. 

release  of  principal,  releases,  §§  1543,  2819. 

indemnitor,   how   far   entitled  to   rights  of,    § 
2779. 

when  person  indemnifying  is,  §  2779. 

defined,  §  2831. 

apparent  principal  may  show  he  is,  §  2832. 

liability   cannot   exceed   terms   of   contract,    § 
2836. 

not    altered    by    judgment    against    principal, 
§  2838. 

discharged  by  offer  to  perform  principal  obli- 
gation, §  2839. 


1018  INDEX. 

SUPERVISORS— Continiiecl. 

interpretation  of  contract,  §  2837. 

how  exonerated,  §§  2838,  2845. 

rights  of,  same  as  guarantor's,  §  2844. 

right  to  compel  creditors  to  sue,  §  2845. 

to  compel  principal  to  perform,  §  2846. 

to  compel  principal  to  repay  him,  §  2847. 

to  compel  cosureties  to  contribute,  §  2848. 

to  enforce  remedies  of  creditor  against  princi- 
pal, §  2848. 

to  benefit  of  securities  held  by  creditor  or  co- 
surety, §  2849. 

to  have  principal's  property  taken  first,  §  2850. 

rights  of  creditor  against,  §  2855. 

indorser  for  accommodation  has  rights   of,    § 
3122. 

corporation  acting  as  surety,  p.  725,  Stat. 

corporation,  acting  as  surety,  assets  of,  p.  726. 
Stat. 

corporation  acting  as,  duty  of  insurance  com- 
missioner, p.  726,  Stat. 
SURPLUS,  conveyance  in  excess,  by  owner  of  life 
estate,  §  1108. 

of   advancement   by   testator  during   lifetime, 
effect  of,  §  1396. 

execution    by   agent   in   excess    of    authority, 
when  binds,  §  2333. 
SURPRISE,    contract    made   by,    not   specifically 

enforced,  §  3390. 
SURVEYOR-GENERAL,  selection  of  right  of  way 

by  corporations  sent  to,  §  478. 
SUSPENSION,  of  power  of  alienation,  §§  715,  733. 

of  ownership  of  term  of  years,  §  770. 

of  power  to  alienate  subject  of  trust,  §  771. 

of  policy  of  insurance  by  transfer  of  thing,  § 
2593. 
TAIL,  estates  in,  abolished,  §  763. 

to  what  extent  valid,  §  764. 
TAXES,  owner  of  life  estate  must  pay,  §  840. 

covenant  for  payment  of,   runs  with   land,    § 
1463. 

building  and  loan  associations,  tax  on,  §  648i/^. 

act   imposing   tax   on   issue   of   certificates   of 
stoclv  corporations,  p.  833,  Stat. 
TECHNICAL  WORDS.    See  Definitions;    Words. 

how  construed,  §§  13,  1327,  1328. 
TELEGRAPH,  obligations  of  carrier  by,  §2161. 

carrier  by,  must  use  utmost  care,  §  2162. 


INDEX.  1019 

TELEGRAPH— Contimiecl. 

eommoD  carrier  by,  must  transmit  in  what  or- 
der, §§  2207,  2208. 
penalty  for  refusing  or  postponing   message, 
§  2209. 
TELEGliAPH  COMPANIES.    See  Corporations, 
act  granting  franchise  for  telegraph  company 

between  Asia  and  America,  p.  835,  Stat, 
act  providing  for  sale  of  franchise  to  highest 
bidder,  p.  814,  Stat. 
TELEPHONE    COMPANIES,    act   providing   for 
sale  of  franchise  to  highest  bidder,   p.  814, 
Stat. 
TENANT.    See  Landlord  and  Tenant. 
TENANTS  IN  COMMON,  husband  and  wife  may 
hold  as,  §  161. 
when  several  devisees  take  as,  §  1350. 
TENDER.    See  Offer  of  Performance. 
TESTAMENT.    See  Wills. 
TESTATOR.    See  Wills. 
TESTIMONY.    See  Evidence. 
THING  IN  ACTION.    See  Chose  in  Action. 
THIRD  PERSON,  when  may  recover  for  necessa- 
ries furnished  wife,  §  174. 
necessaries  furnished  child,  §  208. 
when    not    recover    for    necessaries  furnished 

child,  §  209. 
contracts  for  benefit  of,  §  1559. 
estates  for  life  of,  §  7(36. 

remainder  on  estates  for  life  of,  §§  775,  776. 
eff'ect  of  transfer  where  consideration  paid  by, 
•  §  853. 

delivery  in  escrow  made  to,  §  1057. 
grant  may  inure  to  benefit  of,  §  1085. 
may  enforce  contract  made  for  own  benefit, 

§  1559. 
when  voluntary  trustee,  §  2243. 
when  must  see  to  application  of  trust  property 
§2244.  ''' 

trusts  for  benefit  of,  §  2250. 

ratification  to  prejudice  of.  not  allowed,  §  2313. 
responsibility  of  agent  to,  §  2343. 
agent  must  deliver  to,  when,  §  2344. 
liability  of  partner  to,  §  2442. 
who  liable  as  partner  to,  §  2444. 
information  of  belief  of,  material  in  marine  in- 
surance, §  2670. 


1020  INDEX. 

THIRD  PERSON— Continued. 

contract  to  procure  act  by,  not  specifically  en- 
forceable, §  3390. 

not  to  be  prejudiced  by  revision  of  contract, 
when,  §3399. 

act  of,  not  to  prejudice,  §  3520. 

who  must  suffer  by  act  of,  §  3543. 
THREATS,    desertion    caused    by,    as    ground   of 
divorce,  §  98. 

will  procured  by,  void,  §  1272. 

consent  to  contract  obtained  through,  voidable, 
§§  1567,  1689. 

menace,  defined,  §  1570. 

by  trustee  to  obtain  advantage,  §  2228. 

by  partner  to  obtain  advantage,  §  2411. 
TICKET.    See  Fare. 

failure  of  corporation  to  provide,  §  490. 
TIDE-WATER,  owner  of  land  bounded  by,  §  830. 
TIME,  computing,  §§  10,  14. 

of  period  of  minority,  §  26. 

of  commencing  action  for  nullity  of  marriage, 
§83. 

as  to  certain  causes  for  divorce,  §  107. 

of  commencing  actions  for  divorce,  §  127. 

of  creation  of  interest,  what,  §  749. 

in  which  alien  nonresident  must  assert  claim 
to  take  by  succession,  §  672. 

of  delivery  of  grant,  presumption,  §  1055. 

words  in  will,  relate  to  what,  §  1336. 

at  which  obligation  performed,  §§  1490,  1491. 

not   of   essence,   unless   expressly   declared,    § 
1492. 

of  performance  of  contract,  §  1657. 

of  performance,  may  be  extended,  §  1698. 

entire,  of  servant,  belongs  to  master,  §  2013. 

to   which  representation   in   insurance   refers, 
§  2577. 

does  not  confirm  void  act,  §  3539. 

lapse  of.    See  Lapse  of  Time. 
TITLE,  inventory  of  wife's  property  as  notice  of, 
§166. 

ownership  of  instruments,  §  994. 

of  property,  how  acquired,  §§  1000,  1001. 

by  occupancy,   §§  1006,   1007. 

by  accession,  §  1013. 

by  transfer,  §  1039. 

redelivery  of  grant  does  not  revest,  §  1058. 


INDEX.  1021 

TITLE— Continued. 

fee-simple,  when  presumed  to  pass,  §  1105. 

subsequently  acquired,  passes  by  operation  of 
law,    §  1106. 

subsequently  acquired,  passes  by  will,  §  1312. 

what,  passes  by  transfer,  §§  1083,  1105. 

to  highway,  passes  by  transfer,  §  1112. 

to  personal  property,  what  passes  by  transfer, 
§  1140. 

under  executory  agreement  of  sale,  §  1141. 

when  buyer  acquires  better,  than  settler  has, 
§  1142. 

instruments  evidencing,  declared  by  judgment, 
how  proved  for  record,  §§  1159.  1204. 

by  homestead  declaration,  §  1205. 

to  homestead,  how  recorded,  §  1268. 

by  devise,  §  1311. 

by  specific  devise  or  legacy,  §  13G3. 

to  thing  in  performance,  when  passes  to  cred- 
itor, §  1502. 

warranty  of,  to  personal  property,  §  1765. 

loan  for  use  does  not  transfer,  §  1885. 

loan  for  exchange  transfers,  §  1904. 

to  freight,  by  transfer  of  bill  of  lading,  §§  2127, 
2128. 

implied  warranty  of,  to  personal  property,  au- 
thority to  agent  to  sell,  §  2323. 

lien  does  not  transfer,  §  2888. 

property.    See  Property. 

ownership.    See  Ownership. 
TITLE  DEEDS,  ownership  of,  §  994. 
TITLE  INSURANCE  COMPANIES,  plant  consid- 
ered as  part  of  assets  of,  §  427. 

dividends  by,  i;§  429,  430. 

accumulating  surplus  fund,  §  432. 
TOLLS,  by  wagonroad  corporations,  §  514. 

penalty  for  talking  unlawful,  §  514. 

not  on  public  highways,  §  515. 

rates  to  be  posted  over  gate,  §  516. 

toll    gatherer    may    detain   person    until    paid, 
§  517. 

not  to  detain  person  unnecessarily,  §  518. 

penalty  for  avoiding,  §  519. 

right  of  taking  as  servitude,  §  802. 
TORTS.    See  Wrongs. 
TRADE,  contracts  in  restraint  of,  §§  1073-1675. 

Civ.   Code— 86. 


1022  INDEX. 

TRADEMARKS,  subjects  of  ownership,  §  655. 

what  may  be  appropriated  as,  §  991. 

implied  warranty,  §  1772. 

act  to  protect  owners  of  bottles,  boxes,  siphons, 
and  liegs  user!  in  sale  of  waters,  beverages,  or 
beer,  p.  835,  Stat. 

misdemeanor,  use  of  bottles,  kegs,  boxes,  or  si- 
phons  protected   by   trademark,   p.  836,    §  2, 
Stat. 
TRANSFER,   of  services  and    custody  of    child, 
§197. 

of  stock,  how,  §  324. 

of  stock  of  married  woman,  §  325. 

of  stoclv  of  noniesident,  §  326. 

future  interests  may  pass  by,  §  699. 

effect  of,  Mhere  consideration  paid  by  third 
person,   §  853. 

omitting  to  declare  trust  in,  §  809. 

thing  in  action  subject  to,  §  954. 

product  of  mind  subject  to,  §  982. 

goodwill  subject  to,  §  993. 

property  acquired  by,  §  1000. 

defined,  §  1039. 

voluntary,  defined,  §  1040. 

voluntary,  consideration  not  necessary  to  val- 
idity, §  1040. 

what  subject  of,  §  1044. 

mere  possibility  not  subject  of,  §  1045. 

right  of  re-entry  subject  of,  §  1046. 

adverse  claim,  §  1047. 

agreement  not  to  transfer  insured  interest, 
when  void,  §  2599. 

of  life  insurance  policy,  §  2564. 

of  thing  insured  does  not  transfer  policy,  § 
2593. 

of   interest  in  partnership   property   dissolves 
partnership.  §  2450. 
Mode  of,  oral,  §  1052. 

by  grant,   §  1053. 
Effect  of,  to  vest  title,  §  1083. 

upon  incidents  of  thing  transferred,  §  1084. 

in  favor  of  stranger,  §  1085. 

of  personal  property  by  sale,  §  1140. 
Unlawful     and     fraudulent,    instruments    void 
against  purchasers,  §  1227. 

not  void  against  purchasers  having  notice,  un- 
less fraud  mutual,  §  1228. 


INDEX.  1023 

TRANSFER— Continued. 
Unlawful  and  fraudulent  power  to  revoke,  when 
executed,  §§  1229,  1230. 
other  ijrovi>^ions   concerning,   §  1231. 
presumed,  Avhen,  §  3440. 
when  creditor  can  avoid,  §  3441. 
question  of  fraud  in  respect  to,  a  question  of 
fact,  §  3442. 
Of    obligations,    burden,   when    transferable.    § 
1457. 
right  arising  out  of  obligation,  §  1458. 
of  obligation  running  with  land,  §  1460. 
Of  per.soual  property,  when  in  writing,  §  1135, 
by  sale,  §  1130. 
of  title  under  sale,  §  1140. 
under  executory  agreement,  §  1141. 
effect  of,  under  sale,  §  1142. 
TRANSIT,  mort2:a2:ed  property  in,  where  deemed 
located,  §  29(37. 
stoppage  in,   §  307G. 
stoppage  in,  liow  effected,  §  3079. 
stoppacce  in,  effect  of,  §  3080. 
TREASURE-TKOVE.     See  Finder. 
TREES,  ownership  of.   §§  833,  834. 

damages  for  injuries  to,   §  3346. 
TRESPASS,  personal  property  acquired  by  §  1031. 
on  personal  property,  liability  of  trespasser,  § 
1030. 
TRIFLES,  law  disregards,  §  3533. 
TRIvSTS.  suspension  of  power  to  alienate  subject 
of.  §  771. 
limited  to  those  specified,  §  847. 
must  be  in  writing,  §  852. 
resulting,  limited.  §  853. 

resulting,  not  to  prejudice  purchasers,  §  856. 
express,  for  what  purposes  alloAved,  §  857. 
when  liable  to  creditors,  §  859. 
vest  Avhole  estate  in  trustees,  §  863. 
author  of,  may  prescribe  to  whom  estate  shall 

belong,  §  864. 
estate  of  grantee  subject  to,  §  865. 
estate  left  in  author  of,   §  866. 
powers  over,  of  beneficiaries,  §  867. 
omilting  to  declare  in  conveyance,  §  869. 
expressed  in  creation  of  estate,  acts  in  breach 

of.  void,  §  879. 
when  to   cease,    §   871. 


1024  INDEX. 

TRUSTS— Continued. 

interest  in,  liow  transferred,  §  1135. 

transfer  of  property  in,  wlien  recorded,  §  1164. 

voluntary,  defined,  §  2216. 

Involuntary,  §  2217. 

parties  to,  §  2218. 

for  what  object  created,  §  2220. 

who  deemed  trustee  under,  §  2219. 

voluntary,  how  created  as  to  trustor,  §  2221. 

how  created  as  to  trustee,  §  2222. 

obi  ligations  of  trustee.     See  Trustees. 

obligations  of  trustor.    See  Trustees. 

obligations  of    third  persons  in    respect  to,  § 
2243. 

third  person,  when  bound  to  see  to  application 
of  property  in,  §  2244. 

defined,  §  2250. 

how  created,  §  2251. 

when  court  is  trustor  under,  §  2252. 

how  declared,  §§  2253,  2254. 

termination,  §  2279. 

not  revocable,  §  2280. 

trustee  may  be  discharged,  when,  §  2282. 

effect  of  extinction  of,  §  2282. 

declaration  of  must  be  obeyed,  §  2558. 

accumulations.    See  Accumulations. 

act  to  prevent  combinations  to  obstruct  sale  of 
live  stock,  p.  705,  Stat. 

See  Trustees 
TRUSTEES,  on  dissolution  of  corporations,  §  400. 

A^hole  estate  vests  in,  when,   §  863. 

when  grant  to,  deemed  absolute,  §  869. 

acts  of,  in  breach  of  expressed  trust,  void,  § 
870. 

estate,  when  ceases,   §  871. 

defined,  §  2218. 

what  constitutes,  §  2219. 

beneficiary  must  be  indicated  by  trust,  §  2221. 

trust,  how  created  as  to,  §  2222. 

involuntary,  wrongful  holder,  §  2223. 

involuntary,  fraudulent  gainer,  §  2224. 

must  act  in  best  faith,  §  2228. 

not  to  use  property  for  own  funds,  §  2229. 

not  to  talvc  part  in  transactions  adverse  to  ben- 
eficiary, §  2230. 

not  to  take  advantage  of  beneficiary,  §  2231. 

not  to  assume  trust  adverse  to  interest  of  bene- 
ficiary, §  2232. 


INDEX.  1025 

TRUSTEES— Continued. 

mnst  disclose  adverse  interest  to  beneficiary,  § 

2233. 
when  .i2:uilty  of  fraud,  §  2234. 
presumption  a.irainst,  §  223.5. 
mixing  funds  witli  o^Yn,  bow  far  liable,  §  2236. 
measure  of  liability  for    breach  of    trust,   §§ 

2237,  2238. 
responsible   for    acts    of    co-trustee,   when,    § 

2239. 
when   third     person     becomes   involuntary.    § 

2243. 
payment  to,  when  sufficient,  §  2244. 
when  person  acquiring  trust  property  becomes, 

§  22.50. 
assent  of  trustor  and,  creates  trust,  §  2251. 
appointed  by  court,  court  is  trustor,  §  2252. 
declaration  of  trust  by  trustor,  §§  22-53,  2254. 
must  fulfill  purpose  of  trust,   §  22.58. 
use  ordinary  care  and  diligence,  §  2259. 
procure  trustworthy  successor  on  discharge,  § 

2260. 
invest  trust  fund,  how.  §  2261. 
pay  interest,  when,  §  2262. 
cannot  enforce  claim    against    trust    fund.    § 

2263. 
powers  of,  as  agent,  §  2267. 
cannot  act  without  assent  of  co-trustee,  §  2268. 
discretionary  power  of,  how  controlled,  §  2269. 
involuutaiy  rights  of,  §  2275. 
trustor  cannot  revolve  trust,  when,  §  2280. 
office,  how  vacated,  §  2281. 
how  discharged,  §  2282. 
how  removable,  §  2283. 
nppointraent  of  new,  §  2287. 
survivorship.    §    2288. 
superior  court,  Mhen  to  appoint,  §  2289. 
declaration  of  trust  must  be  obeyed,  §  2558. 
insurance  b^'.  how  made,  §  2589. 
UNCERTAINTY  in  will,  how  interpreted,  §  1272. 
UNDUE  INFLUENCE,  will  procured  by,  void,  § 

1272. 
contract  obtained  through,  voidable,   §§   1567, 

1689. 
defined,  §  1575. 

thing  gained  by,  lield  in  trust,  §  2224. 
presumption  of,  against  trustee,  §  2235. 


1026  INDEX. 

UNFAIR  ADVANTAGE.     See  AdVcanta^e. 
-UNINCORPORATED       ASSOCIATIONS.  See 

Building:   and    Loan   Associations;    Co-opera- 
tive Associations, 
co-operative   business   corporations.      See   Cor- 
porations, kinds  of,  742,  Stat, 
chambers  of  commerce,   formation  of,  p.  737, 

Stat, 
mechanics'     institutes,    formation    of,    p.    737. 

Stat, 
boards  of  trade,  formation  of,  p.  737,  Stat, 
consolidation  of  college,  effect  of,  §  G53. 
consolidation  of  colleges,  manner  of,  §  652. 
colleges   authorized   to   consolidate,    §    652. 
consolidation  of  colleges,  transfer  of  property, 

§  653. 
cumulative  voting  in,  §  307. 
UNLAWFUL    condition     in     instrument    renders 
void,  §  709. 
condition  in  obligation  void,   §  1442. 
alternative  in  contract,   effect  of,   §   1451. 
contracts.     See  Contracts, 
transfers.     See  Transfers. 
UNRECORDED  INSTRUMENTS.    See  Bona  Fide 
Purchasers, 
valid  as  between  parties  and  those  having  no- 
tice, §  1217. 
UNSOUND    MIND.      See     Persons     of     Unsound 

Mind. 
USAGE,  meaning  of  words  fixed  by,  §  1644. 
employee  to  conform  to,  §  1982. 
agent  to  conform  to,  §  2349. 
USES    AND     TRUSTS.       See     Charitable     Uses; 

Trusts. 
USURY.     See  Interest. 

VALUABLE  CONSIDERATION.     See  Considera- 
tion. 
VENDOR,  lien  of,  §  3046. 
vendee's  lien,  §  3050. 
when  deemed  to  waive  lien,  §  3047. 
extent  of  lien,  §  3048. 

vendor  and  vendee.     See    Conveyances;    Pur- 
chaser. 
VESTED  INTEREST,  future,  defined,  §  694. 
VIGILANT,  preference  given  to  the,  §  3527. 
VOLUNTARY  TRANSFER,  defined,  §  1040. 

consideration  not  necessary,  §  1040. 
VOYAGE.     See  Shipping. 


INDEX.  1027 

WAGES.     See  Services. 

of  minor,  when  paid  to  him,  §  212. 

of  seamen,  when  begin,  §  20.55. 

depend  on  freightage,  when,  §  2054. 

depend  on  freightage,  wlien  not,  §  2058. 

wlien  voyage  brol^en  np.  §  205G. 

when  wrongfully  discharged,  etc..  §  2057. 

when  prevented  from  rendering  service,  §  2060. 

when  personal  representatives    entitled    to,   § 
20G2. 

not  lost  by  special  agreement,  §  2052. 

of  seamen,  lien  for,  §  305G. 
WAGON  ROAD  COliPORATIONS.     See  Corpora- 
tions. 
WAIVER,  person  of  unsound  mind    cannot    lose 
rights  by,  §  40. 

of  objections  to  offer  of  performance.  §  1501. 

of  option  as  to  delivery  of  goods.  §  17.56. 

of  communication  in  insurance,  §  2568. 

of  notice  of  sale  of  pledged  property,  §  3003. 

of  demand  by  pledgor  or  debtor,  §  3004. 

of  presentment  and  notice.  §  31.59. 

of  protest.  §  3160. 

of  provisions  of  Civil  Code  by  stipulation  be- 
tween parties.  §  3268. 
WAR  dissolves  partnership,   §  2450. 
WARD.     See  Guardian  and  Ward. 
WAREHOrSEMAX.     See  Storage. 

act  concerning  receipt  of,  p.  839. 

carrier's  liability  as.  §  2120. 

cai'rier's  liability  ceasing  on  delivery  to,  §  2121. 

fire,   warehouseman  not  liable     for     loss  by, 
without  neglect,  p.  841,  §  9,  Stat. 

act  relating  to  issue  of  receipts,  p.  839,  Stat. 

warehouseman  violating  statute  relating  to  re- 
ceipts guiltv  of  felony,  p.  842,  §  10,  Stat. 
WARRANTIES,  lineal  and  collateral,  abolished,  § 

1115. 
WARRANTY.     See  Quality;  Quantity. 

covenant  of,  runs  Avith  land,  §  1463. 

executory  contract  binds  seller     to     insert,   § 
1733. 

defined,   §  1763. 

none  implied  in  sale,  except,  §  1764. 

of  title  to  personal  property,  §  1765. 

on   sale  by  sample,   §   1766. 

where  buyer  relies  on  seller's  judgment,  §  1767. 

by  manufacturer,  §§  1768-1770. 


1028  INDEX. 

WARRANTY— Continued. 

of  goods  inaccessible  to  buyer,  §  1771. 

of  tradeniarlvs,  §  1772. 

of  other  marlcs  on  goods,  §  1773. 

on  sale  of  written  instrument,  §  1774. 

of  provisions  for  domestic  use,  §  1775. 

on  sale  of  good-will,  §  1776. 

on  judicial  sale,  §  1777. 

effect  of  general,  §  1778. 

right  of  buyer  to  inspect  goods  on  sale  with.  § 

1785. 
right  of  buyer  to  rescind  in  case  of  breach  of,  § 

17S6. 
implied,  of  money  exchanged,  §  1807. 
implied,  in  authority  to  agent  to  sell  personal 

property,  §  2323. 
implied  in  negotiable  instrument,  §  8116. 
of  authority,   §  2342. 
agent  has  power  to  give,  §  2323. 
auctioneer  has  power  to  give,  §  2362. 
damages  on,  of  quality  of  personal  property,  § 

3313. 
damages  on,   of  title  to  personal  property,   § 

3312. 
damages  on,  of  agent's  authority,  §  3318. 
in  insurance.     See  Insurance. 
WATER.    See  Streams. 

easement  in,  where  furnished  to  land  sold  by 

company,  §  552. 
right  of  taking,  as  easement,  §  801. 
right  of  receiving  and  discharging  on  land,  as 

easement.  §  801. 
boundaries  by,  §  830. 
rights  to,  how  acquired,  §  1410. 
rights  of  appropriation,  §  1410. 
appropriation  must  be  for  use,  §  1411. 
point  of  diversion  may  be  changed,  §  1412. 
clianging  the  use.  §  1412. 
may  be  turned  into  natural  channels,  §  1413. 
priority  of  right  to,  §  1414. 
notice  of  appropriation,  §  1415. 
diligence  in  appropriation,  §  1416. 
"completion"  defined,  §  1417. 
doctrine  of  relation  applied  to,  §  1418. 
forfeiture  of  right  to,  §  1419. 
rights  of  present  claimant,  §  1420. 
act  regulating  sale  of  water,  p.  843,  Stat. 


INDEX.  1028 

WATER— Continued. 

appropriation,  riglits  to  water  may  be  acquired 
by,  §  1410. 

such  to  be  for  useful  purpose,  §  1411. 

priority  of  such  establislies  priority  of  right,  § 
1414. 

notice  of  such,  §  1415. 

diligence  in  prosecuting  such.  §  1416. 

appropriation  of,  act  tsecuring  rights  of  way 
for  conveyance  of  water  to  place  of  use,  p. 
843,  Stat. 

appropriation,  time  for  construction  of  worlds 
where  dam  recommended  by  debris  commis- 
sioners,  §  1416. 

appropriation  of,  act  regulating  sale,  rental, 
and  control  of  appropriated  water,  p.  843, 
Stat. 

appropriation    of,    act  providing  for  rights  of 
way  for  convej'ance  of.  p.  843,  Stat. 
WATER  COMMISSIONERS,  act  to  promote  irri- 
gation, §  1422. 
WATER  COMPANIES.     See  Corporations,  kinds 
of. 

appropriation  of,  act  regulating  sale,  rental, 
and  distribution  of,  p.  843,  Stat. 

act  regulating  sale,  rental,  and  distribution  of 
water  other  than  in  cities,  p.  843,   Stat. 

irrigation  corporation,  duty  to  supply  water,  § 
324. 

duty  to  supply  water,  §  324. 

irrigation  corporation,  transfer  of  shares  of 
stocli  in,  §  324. 

irrigation  corporation,  transfer  of  stock  in,  § 
324. 

irrigation  corporation,  stock  located  on  land, 
transfer  of,  §  324. 

irrigation  corporation,  stock  in,  as  appurte- 
nance to  land,  §  324. 

corporation  to  sell  water  for  irrigation,  sale  to 
stockholders  only,  §  324. 

act  regulating  sale,  rental,  and  control  of  ap- 
propriated water,  p.  843,  Stat. 

act  securing  rights  of  way  for  conveyance  of 
water  to  places  of  use,  p.  843,  Stat. 

act  providing  for  securing  rights  of  way  for 
conveyance  of  water.  p.''S43T  Stat. 
WAY,  RIGHT  OF.    See  Riglit  of  Way. 


1030  INDEX. 

WAYS,  boundaries  by,  §  831. 

WEAKNESS  OF  MIND.     See  Persons     of     Un- 
sound Mind, 
unfair  advantage  of,  renders  contract  voidable, 
§§  1507.  1575. 
AVHARF    CORPORATIONS.      See    CoiiDorations, 

Kinds  of. 
WHARFIMGER,   act  concerning    receipts    of,   p. 

839,  Stat. 
WIDOW,  legacy  to.  when  chargeable  with  debts 
of  testator,  §  1361. 
Interest  on  legacy  to,  when  accrues,  §  1369. 
inlieritance  bv.    See   Succession. 
WIFE.    See  Husband  and  Wife. 
WILLS. 

succession.    See  Succession. 

include  codicils,   §  14. 

when  person  of  unsound  mind   may  make,   § 

40. 
devisee  may  dispute  legitimacy  of  issue,  §  196. 
future  interest  may  pass  by,  §  699. 
power  may  be  acquired  by.  §  1000. 
liability  of  persons  acquiring  property  by,    § 

1115. 
effect  of,  upon  gift,   §  1152. 
gift  when  treated  as  legacy,  §  1153. 
who  may  malce,  §  1270. 
procured  bv  fraud,  may  be  denied  probate,  § 

1272. 
revocation,  obtained  by  fraud,  void,   §  1272. 
married  woman  may  dispose  of  separate  prop- 
erty by,  §  1273. 
what  may  pass  by,  §  1274. 
who  talie  by,  §  1275. 
written,  how  executed,  §  1276. 
olographic  will  defined,  §  1277. 
witness  must  state  residence,  §  1278. 
conjoint  or  mutual,  §  1279. 
competency  of  subscribing  witness,  §  1280. 
conditional,    §   1281. 

gift,  to  subscribing  witness,  when  void,  §  1282. 
creditors  competent  witnesses,  §  1282. 
witness,  Avhen  entitled  to  devise  by,  §  1283. 
void,  unless  duly  executed,  §  1285. 
effect  of  codicil,  §  1287. 

power  to  devise,  how  executed  by  terms  of,  § 
1330. 


INDEX.  1031 

WILLS— Continued. 

execution  nnd  f'(»nstruction  of  prior,  not  affect 
ed  by  Code,  §  1375 

mort.uage  on  property  devised,  how  satisfied,  f 
2040. 

child  born  after,  tal^es  share,  §  130G. 

share  of  child  born  after,  out  of  what  taken,  § 
1308. 

children  unprovided  for,  when  succeed.  §  1307. 

death  of  devisee  before  testator,  §§  1309,  1343, 
1344. 

when   devise  does   not   lapse  by  death  of  dev- 
isee, §  1310. 

devises,  how  construed,  §  1311. 

subsequently  acquired  title  passes  by,  §  1312. 
,       restriction  on  power  to  devise  to  charitable  use, 
§  1313. 

change  of  interest  by,  does  not  affect  insur- 
ance, §  255G. 

conditional  will,  when  may  be  denied  probate, 
§  1281. 

conditional  devise  or  bequest,  what,  §  1345. 

conditional  devise  or  bequest,   when  vests,    § 
1347. 

advancements.   See  Advancements. 
Interpretation  and  effect  of,  accoi'ding  to  inten- 
tion, §  1317. 

confined  to  written  will,  §  1318. 

rules  to  be  observed,  §  1319. 

several,  to  be  taken  together,  §  1320. 

all  parts  considered  in,  §  1321. 

latter  part  controls,  §  1321. 

distinct  clause  not     affected     by  indistinct,  § 
1322. 

am  Dignity  or  doubt,  §  1323. 

words  taken  in  ordinary  sense,  §  1324. 

words   to     receive    operative    construction,    § 
1325. 

to  avoid  intestacy,  §  132G. 

technical  words,  §  1327. 

technical  words  not  necessary,  §  1328. 

word  '"heirs"  not  necessary  to  pass  fee,  §  1329. 

power  to  devise,  how   executed  by  terms  of 
will,  §  1330. 

of  devise  of  real  property,  §  1331. 

of  devise  of  residue  of  real  property,  §  1332. 

of  devise,  as  referring  to  time  of  death,  §  1333. 


1032  INDEX. 

WILLS— Continued. 

"heirs,"    "reiatives,"    "issue,"     "descendants," 
etc.,  §  1334. 

of  Yv^ords  of  donation  and  limitation,  §  1335. 

to  wliat  time  words  refer,  §  1336. 

of  devise  or  bequest  to  a  class.  §  1337. 

of  directions  or  conversion,  §  1338 

when  posthumous  child  takes    under    will,   § 
1339. 

mistakes  and  omissions,  §  1340. 

when  devises  and  bequests  vest,  §  1341. 

when  cannot  be  divested,  §  1342. 

death  of  devisee  or  legatee,  §  1343. 

interests  in  remainder  not  affected,   §   1344. 

conditional  devises  and  bequests,  §  1345. 

condition  precedent,  what,   §1346. 

conditions  precedent,  when  performed,  §  1348. 

effect  of  condition  precedent,  §  1347. 

conditions  subsequent,  what,  §   1349. 

devisees,   etc.,  talvc  as  tenants  in  common,   § 
1349. 

advancements  when  ademptions,   §   1351. 

by  what  law  governed,  §  1376. 

executor  according  to  the  tenor,  §  1371. 

power  to  appoint  is  invalid,  §  1372. 

executor  not  to  act  till  qualified,  §  1373. 

execution   and   construction   of   prior   wills,    § 
1375. 

the  law  of  what  place  applies,  §  1376. 
Legacies  and  general  provisions,  nature  and  der- 
ivation of  legacies,  §  1357. 

specific,  §  1357. 

demonstrative,  §  1357. 

annuit3%   §  1357. 

residuary,  §  1357. 

general,  §  1357. 

ademptions,   §  1351. 

order  of  sale  in  case  of  intestate,  §  1358. 

property,  how  applied  to  payment  of,  §  1359. 

how  applied  to  payment  of  debts,  §  1360, 

to  kindred,  chargeable  only  after  others,  §  1861. 

abatement  of,  §  1362. 

specific,  title  passes  by,  1363. 

possession  of,  how  obtained,  §§  1363,  1865. 

heirs'  conveyance  good  when,  §  1364. 

for  life,  inventory  to  be  given,  §  1365. 

of  income,  when  accrues,  §  1366. 


INDEX.  1033 

WILLS— Continued. 

may  be   satislied.    §   13G7. 

when  due,  §  1308. 

interest   on,  §  1369. 

construction  of  rhese  rules,  §  1370. 

liability  or*  letj^atees  for  testator's  debts,  §  1377. 
Revocation  of,  procured  by  fraud  may  be  annull- 
ed, §  1272. 

of  mutual  will  may  be  effected,  §  1279. 

void,  unless  duly  executed,  §  1285. 

of  Ayritten  will,  §  1292. 

eyidence,  §  1293. 

of  duplicate,  §  1295. 

by  subsequent  will,  §  1296. 

subsequent,  does  not  reyive  prior  will.  §  1297. 

by  marriage  and  birth  of  issue,  §  1298. 

by  marriaue  of  testator,  §  1299. 

by  marriaue  of  testatrix,  §  1300. 

contract  to  sell  property  disposed  of.  §  1301. 

incumbrance  on  property  disposed  of,  §  1302. 

conyeyance,  when  not,  §  1303. 

couyeyance,  when,  §  1304. 

reyokes  codicils,  §  1305. 

after-born  child,  unproyided  for,  to  succeed,  § 
1306. 

children  unproyided  for,   §  1307. 

share  of  unproyided  for  child,   §  1308. 

advancement  to  child,  §  1309. 

death  of  devisee,  being  a  relative,  during  testa- 
tor's lifetime,  §  1310. 

provisions  relating  to,  apply  to  what  wills,  § 
1374. 
Nuncupative,  need  not  be  in  writing,  §  1276. 

how  executed,  §  1288. 

requisites  to  make  valid,  §  1289. 

proof,   §   1290. 

probate,  §  1291. 
WITNESSES.    See  Evidence. 

testimony,  when  privileged,  §  47. 

recording  of  instruments  proved  by  other  than 
subscribing,  §  1198. 

oatii  of  credible,  necessary  in  taking  acknowl- 
edgments, §  1185. 

subscribing,  to  be  personally  known  to  officer 
talviug  i)roof,  §  1196. 

to  prove,  what,  §  1197. 

handwriting  of,  when  proved,  §  1198. 
Civ.   Code— 87. 


1034  INDEX. 

WITNESSES— Continued. 

siibseribins:,  to  prove,  what,  §  1199. 

lo  will,  necessary,  §§  1276,  1289. 

to  will.  §  1278. 

to  will,  cannot  take  under  will,  §  1282. 

when  may  take  as  much  under  will  as  by  suc- 
cession, §  1283. 

not  necessary  to  oloorapliic  will,  §  1277. 
AYOMEN.     See  Female. 
WORDS.     See  Delinitions;  Technical  Words. 

giving  joint  authority,  how  construed,  §  12. 

construction    of,    §    13. 

of   inheritance,    not  necessary  to  pass   fee,    § 
1072. 
Interpretation  of,  doubtful,  §§  1068,  1654. 

taken  in  ordinary  sense,   §§   1321,  1644. 

technical,  not  necessary  in  will,  §   1328. 

to   receive   operative    construction    in  will,    § 
1325. 

technical,  how  construed,  §§  1327,  1645. 

to  be  given  some  meaning  if  possible,  §  1326. 

in  will,  to  what  time  refer,  §  1336. 

of  donation  and  limitation  in  will,  §  1335. 

used  in  codes.    See  Codes. 
WORKMANSHIP,  ownership  of  property  formed 

by   materials  and.    §   1028. 
W^RECKS  AND  AA'RECKED  TROPERTY,  invol- 
untary deposit  in  case  of  shipwreck,  §  1815. 

duty  of  depositary  in  such  case,  §  1816. 

wages  of  seamen  not  lost  by  shipwreck,  §  2058. 
WRITING.     See  Oral  Statements. 

marriage  settlement,  §  178. 

consent  to  apprenticeship,  §  266. 

trusts  in  real  property,  §  852. 

ownership  of  private  communications  in,  §  991. 

transfer  without,  when,  §  1052, 

transfer  in,  called  grant,   §   1053. 

transfer  of  real  property  to  be  in,  §  1091. 

instruments  in,  prima  facie  import  considera- 
tion, §  1096. 

transfer  of  what  personal  property  to  be  in,  § 
1135. 

will,   §   1276. 

nuncupative  will  need  not  be  in,  §  1288. 

non -negotiable  instrument   in.   transferable,    § 
1459. 

debtor,   on  payment,   entitled  to  receipt  in,   § 
1499. 


INDEX.  1035 

WRITING— Continued. 

release  in.   §  1541. 

contract  prevented  by  fraud  from  being  put  in, 
enforced  when,  §  1G23. 

wliat  contracts  to  be  in,  §  1624. 

supersedes    oral    negotiations    concerning   con- 
tract. §  1625. 

contract  in.  talces  effect  when,  §  1626. 

how  far  disregarded  when  erroneous,  §  1640. 

intention  of  parries  wlien  ascertained  from,  § 
1639. 

in  contract  controls  printed  parts,  §  1651. 

contract  in,  liow  altered,  §  169S. 

implied  warranty  on  sale  of  executory  instru- 
ment in,  §  1774. 

carrier's  obligations  not  altered  except  by,   § 
2174. 

guaranty,  when  to  be  in,  §  2793. 

power  of  attorney  to  execute  personal  mort- 
gage, §  29.59. 
WROXG,   minors  and  persons   of  unsound   mind 
liable  foi-,  S  41. 

he  who  consents,  suffers  no,  §  3515. 

no  one  can  be  permitted  to  take  advantage  of 
his  own,  §  3517. 

remedy  for  every,   §  3523. 

law  does  not  interpose  between  parties  equally 
in,   §  3524. 
YEAR,  defined,  §§  14,  1917. 


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